TRANSGENDER NEUTRALITY OF SEXUAL

OFFENCES: AN AFTERMATH OF
DECRIMINALIZATION OF SECTION 377

Dissertation submitted in part fulfilment for the requirement of the

Degree of

LL.M.

Submitted by Supervised by

DIVYA ASWANI PROF. (DR.) MRINAL SATISH

National Law University

Delhi (India)
2019
 DECLARATION BY THE CANDIDATE

I hereby declare that the dissertation entitled “Transgender Neutrality Of Sexual

Offences: An Aftermath Of Decriminalization Of Section 377” submitted at
National Law University, Delhi is the outcome of my own work carried out under
the supervision of Prof. (Dr.) Mrinal Satish, Chairperson, Delhi Judicial
Academy, Delhi.

I further declare that to the best of my knowledge, the dissertation does not contain
any part of my work, which has been submitted for the award of any degree either in
this University or in any other institution without proper citation.

Divya Aswani
40/LLM/18
National Law University,
Place: New Delhi Delhi
Date: 22nd May, 2019

I|Page
 CERTIFICATE OF SUPERVISOR

This is to certify that the work reported in the LL.M. dissertation titled

“Transgender Neutrality Of Sexual Offences: An Aftermath

Of Decriminalization Of Section 377” submitted by Divya Aswani

at National Law University, Delhi is a bona fide record of her original work

carried out under my supervision.

Prof. (Dr.) Mrinal Satish

Chairperson
Place: New Delhi Delhi Judicial Academy,
nd
Date: 22 May, 2019 New Delhi

II | P a g e
 ACKNOWLEDGEMENT

I take this opportunity to extend my heartfelt gratitude and sincere regards to my

supervisor, Prof. (Dr.) Mrinal Satish for his constant guidance, support and
encouragement throughout the tenure of this dissertation. He has always been a great
source of inspiration. His valuable suggestions and enlightening discussions have
played an instrumental role in the successful completion of this dissertation. This idea
would have not blossomed in absenteeism of his extensive supervision. I’m deeply
indebted to him for taking out time from his busy schedule and entertaining my
queries.

I further extend my gratitude to the institution, National Law University, Delhi,

especially Prof. (Dr.) Ranbir Singh (Vice-Chancellor, National Law University,
Delhi) and Prof. (Dr.) G.S. Bajpai (Registrar, National Law University, Delhi) for
exhaustive infrastructure facilities required for the successful completion of this
dissertation. I’d also like to thank the library staff of National Law University, Delhi
for their co-operation and assistance.

A special vote of thanks to my family for their constant moral, emotional support and
best wishes and standing by my side in all thick and thins. I also thank all my
colleagues and friends who encouraged me and became a driving force for successful
completion of this dissertation. Last but not the least; I’d like to thank God for
invariable blessings.

Divya Aswani

40/LLM/18

III | P a g e
 LIST OF STATUTES

SERIAL STATUTE
NO.
1. THE BUGGERY ACT, 1533
2. THE CANADIAN HUMAN RIGHTS ACT, 1985
3. THE CONSTITUTION OF INDIA, 1950
4. THE CRIMINAL LAW (AMENDMENT) ACT, 2013
5. THE CRIMINAL LAW (AMENDMENT) ACT, 2018
6. THE GENDER MOTIVATED VIOLENCE, ACT, 2000
7. THE INDIAN PENAL CODE, 1860
8. THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL
LIBERTY, 1967
9. THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE
ACT, 2005
10. THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE
(PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013
11. THE SEXUAL OFFENCES ACT, 1967
12. THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES
ACT, 2012
13. THE UNITED NATIONS CONVENTION AGAINST TORTURE AND
OTHER CRUEL INHUMAN AND DEGRADING TREATMENT OR
PUNISHMENT, 2008
14. THE UNIVERSAL DECLARATION OF HUMAN RIGHTS, 1948
15. YOGYAKARTA PRINCIPLES ON THE APPLICATION OF
INTERNATIONAL HUMAN RIGHTS LAW IN RELATION TO
SEXUAL ORIENTATION AND GENDER IDENTITY, 2006

IV | P a g e
 LIST OF ACRONYMS & ABBREVIATION

AIDs Acquired Immune Deficiency Syndrome

AIR All India Reporter

Apr. April

Cri. LJ Criminal Law Journal

cl. Clause

Cir. Circuit

Dr. Doctor

DB Division Bench

DEL Delhi

DLT Delhi Law Times

ECHR European Court of Human Rights

Feb. February

Govt. Government

Hen. Henry VIII

IPC Indian Penal Code, 1860

ILO International Labour Organisation

Lah. Lahore

LR Law Review

LGBTQA Lesbian Gay Bisexual Transgender

Queer Asexual

Mad. Madras

Mar. March

NALSA National Legal Services Authority

No. Number

Ors. Others

V|Page
P. Page

Para Paragraph

POCSO The Protection of Children from Sexual

Offences Act, 2012

Prof. Professor

SA South Africa

Sect. Sector

SCC Supreme Court Cases

SCR Supreme Court Reporter

STDs Sexually Transmitted Disease

& And

UN United Nation

U.S. United States

v. Versus

WHO World Health Organisation

VI | P a g e
 LIST OF CASES

1. Anamika v. Union of India, (17.12.2018- DELHC).

2. Brother John Antony v. State, 1992 Cri LJ 1352, 1359(Mad).

3. Caleb Orozco v. Attorney General of Belize, Claim no. 668/2010 (2016).

4. DP Minwalla v. Emperor, AIR 1935 Sind 78.

5. Delwin Vriend & ors. v. Her Majesty the Queen in Right of Alberta & ors.,

(1998) 1 SCR 493.

6. Dudgeon v. The United Kingdom (1982) 4 ECHR 149.

7. E.P.Royappa v. State of Tamil Nadu, (1974) 4 SCC 3.

8. Egan v. Canada, (1995) 2 SCR 513.

9. Euan Sutherland v. United Kingdom, (2001) ECHR 234.

10. Government v. Bapoji Bhatt (1884) 7 Mysore LR 280.

11. K.S. Puttuswamy v. Union of India, (2018) 1 SCC 809.

12. Khanu v. Emperor AIR 1925 Sind 286.

13. Khanu v. Emperor AIR 1934 Lah. 261.

14. Kimberly Hively v. Ivy Tech Community College of Indiana, 830 F.3d 698

(7th Cir. 2016).

15. Lawrence v. Texas, 539 U.S. 558, 562 (2003).

16. M v. H, (1999) 2 SCR 3.

17. Maneka Gandhi v. Union of India, (1978) 1 SCC 248.

18. National Coalition for Gay and Lesbian Equality v. Minister of Justice, 1999

(1) SA 6 (CC).

19. National Legal Services Authority v. Union of India, (2014) 5 SCC 438.

20. Navej Singh Johar v. Union of India, (2018) 1 SCC 791.

VII | P a g e
21. Naz Foundation v. Govt. Of NCT of Delhi (2009) 160 DLT 277 (DB).

22. Nicholas Toonen v. Australia Communication, No. 488/1992, UN Doc

CCPR/C/50/D/488/1992 (1994).

23. Obergefell, et al. v. Hodges, Director, Ohio Department of Health, et al., 576

US (2015).

24. Price Waterhouse v. Hopkins, 7490 U.S. 228, 231 (1989).

25. Roberts v. United States Jaycees, 468 U.S. 609, 610 (1984).

26. S. v. Kampher, 1997 (4) SA 460 (C).

27. Schwenk v. Hartford, 204 F. 3d 1187 (9th Cir. 2000).

28. State v. Sheodayal, AIR 1956 Nagpur 8

29. Sudesh Jhaku v. K C Jhaku, 1998 Cri LJ 2428.

30. Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors., (2014) 1 SCC 1.

31. United States v. Smith, 574 F.2d 988 (9th Cir. 1978).

VIII | P a g e
 TABLE OF CONTENTS

TITLE Page
Number
DECLARATION BY THE CANDIDATE I
CERTIFICATE OF SUPERVISOR II
ACKNOWLEDGMENT III
LIST OF ACRONYMS AND ABBREVIATIONS IV
TABLE OF STATUTES V-VI
LIST OF CASES VII-VIII
CHAPTER-I 1-7

INTRODUCTION 1

1.1 INCIDENT THAT TRIGGERED THE TRANS 3

ACTIVISM IN INDIA
3
1.2 STATEMENT OF RESEARCH PROBLEM
4
1.3 OBJECTIVES
4
1.4 HYPOTHESIS
5
1.5 RESEARCH QUESTIONS
5
1.6 RESEARCH METHODOLOGY
6
1.7 SCHEME OF THE STUDY
CHAPTER – II 8-14

SOCIAL EXCLUSION AND VULNERABILITY OF 8

LGBTQA
CHAPTER – III 15-23

INTERFACE OF LGBTQA WITH THE LEGAL 15

SYSTEMS

IX | P a g e
 24-31
CHAPTER – IV
CRIMINAL JUSTICE SYSTEM IN INDIA AND 24

IMPACT OF JUDICIARY ON LGBTQA

32-39
CHAPTER – V
SECTION 377 AND ITS DECRIMINALIZATION 32

CHAPTER – VI 40-51

NEED FOR TRANSGENDER INCLUSIVE SEXUAL 40

OFFENCES
CHAPTER – VII 52-54

CONCLUSION 52

BIBLIOGRAPHY 55-60
Books 55
Statutes 55
Reports 56
Journals/Articles 56
Websites 60

X|Page
 CHAPTER - I
INTRODUCTION

“It was seven or eight years back when I was in Kolkata during Durga
Puja. I was with four of my transgender friends and we were standing in
the line to attend the ceremony when seven to eight guys approached us
and called us out of the line. We went towards them not suspecting what
they wanted. They then started assaulting us by touching in different parts
of our bodies forcefully. This happened in public, we started screaming
but no one came to help us.”1

Individual autonomy, equality and liberty sans discrimination and dignified

recognition of identity and privacy are the overarching ideals that constitute the four
cardinal pillars of our constitution laying the bedrock of fundamental rights and
secluding certain Sections of the society, isolating them from the social mainstream
and forcing them to live in the shackles of prejudiced notions, dogmatic social norms,
parochial mindset, rigid stereotypes and blinkered perceptions.2

In the hetero-normative societies, the male-female dichotomy has created havoc for
the transgender community. The transgender category is an Umbrella term to include
those who transgress the binary notions of gender. According to Sincy Wilson,
transgender people can be identified as individuals of any sex or age who differ from
the stereotypical definition of men and women in terms of behaviour, characteristics
and appearance. 3 The coining of the term was resultant of the activism in the United
States and the Western Europe.4 Transgender can be distinguished from the
homosexuals; while the former is directly correlated to the gender identity of the
individual the latter is associated with the sensual orientation of an individual.5 The

1
Amritta Sarkar, Action for World Solidarity, Telangana, 2018 quoted in Gender Neutral Rape Laws:
What About the Transgender?, The Invisible Lawyer, February 7, 2018.
2
Navtej Singh Johar v. Union of India, (2018) 1 SCC 791.
3
Sincy Wilson and Hashim M Kabeer, Transgender Rights Protection in India – An Analysis, ARTS
AND EDUCATION INTERNATIONAL RESEARCH JOURNAL, 18, 18-19 (2017).
4
Aniruddha Dutta, Contradictory Tendencies: The Supreme Court’s NALSA Judgment on Transgender
Recognition and Rights, JOURNAL OF INDIAN LAW AND SOCIETY (May 13, 2019, 23:53 PM),
http://docs.manupatra.in/newsline/articles/Upload/FC172F97-B266-4AA2-8739-0BDB7E2D966C.pdf
5
Wilson and Kabeer, supra note 3, at 19.

1|Page
community historically traces its existence in all classes, cultures and races however,
their gender identify, sexual preferences and conduct were reserved at the margin of
the society and were meant to be kept as secret from their families, the community at
large and the governmental authorities owing to the fear of persecution and criminal
prosecution attached to it.6 According to Puri, they can be identified as victims of the
wide-spread institutionally tolerated discrimination owing to their distinct sexual
preferences.7 They have a sense of societal and legal exclusion and fear of being
different from the majority and scum to the Victorian ideologies and heterosexual
monogamy.8

The vulnerable and marginalised positioning of community has a cascading effect on

their fundamental and human rights in India.9 The sexual minorities are often met
with discriminatory actions and hostile behaviour on the pretext that they are anti-
religious, anti-tradition, anti-social or immoral and unnatural creatures resulting in
their invisibility and silence.10 The community is deprived of the most basic human
and fundamental rights enshrined under the constitution and requisite to ensure
dignified living of the community irrespective of their sexual orientation.11 The issues
faced by the sexual minorities are in direct association with the institutional ideologies
and socially oppressive structures of capitalism, patriarchy, caste system and religious
fundamentalism.12

This dissertation aims to look at the sexual exploitation and sexual offences
committed against the LGBTQA community owing to their distinct sexual
preferences and is this a rationale enough for non-application of sexual offences,
provided for under the Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’), in
favour of this community which presently is gender-particularistic provision
specifically for women.

6
Aniruddha Dutta, supra note 4 at 227-228.
7
Jyoti Puri, Sexualizing the State: Sodomy, Civil Liberties and the Indian Penal Code, ZUBAAN BOOKS
(Apr. 01, 2019), file:///C:/Users/new/Downloads/Sexualizing_the_State_Sodomy_Civil_Liber.pdf.
8
Suneeta Singh, Sangita Dasgupta, Pallav Partaker, Vijay Hire math, Miriam Clawson and Vishay
Chakra, Charting a Programmatic Roadmap for Sexual Minority Groups in India, SOUTH ASIA HUMAN
DEVELOPMENT SECTOR REPORT NO. 55, WORLD BANK (May 13, 2019),
http://documents.worldbank.org/curated/en/487301468268159125/Charting-a-programmatic-roadmap-
for-sexual-minority-groups-in-India.
9
National Legal Services Authority v. Union of India, (2014) 5 SCC 438.
10
Singh, Dasgupta, Patankar, Hiremath, Claeson and Chhabra, supra note 8, at 8.
11
Id.
12
Id. at 5.

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1.1 Incident that triggered the trans activism in India

The AIDS Bhedbhav Virodhi Andolan published a report in 199113 revealing the
atrocities faced by the transgender community in the nature of sexual violence,
exploitation, assault and extortion under the garb of Section 377 of the IPC
recommending that the said law should be repealed.14 Following this in 1994, the
Medical officers in Tihar jail concluded that 90% of the inmates in the prison
indulged in consensual homosexual activity and recommended facilitation of
condoms to prevent STDs. However, Kiran Bedi, inspector general of Tihar Jail
refused the facilitation of condoms on the pretext that it will promote homosexuality
and consensual sexual conduct amongst homosexual which is punishable under
Section 377 IPC.15 This led to hue and cry and for the first time the community and
transgender activists came out of the closet to support the rights of the LGBTQA
community. A writ petition was filed by ABVA for declaration of Section 377 as
unconstitutional on the anvil of Article 14, 15, 19 and 21 of the constitution and
calling on the judiciary to repeal the said provision of law.

Per contra, it was contested that the Section 377 IPC should not be repealed as it
keeps intact the principles of legal moralism and upholds the majoritarian morality
and its declaration as ultra vires the constitution will be against public morality, public
order and decency. Even though the petition was dismissed in 2001 on technical
grounds it laid the foundation for trans activism in India and across South Asia for the
recognition of their gender identity and substantial rights associated with it.

1.2 Statement of Research Problem

The Constitution of India lays down a non-discriminatory approach towards its

citizenry regardless of the gender identity and the sexual orientation of the individual
and guarantees equality of law and equal protection of law. The present study intends
to analyse the positioning of the LGBTQA community in India and simultaneously

13
AIDS Bhedbhav Virodhi Andolan, Less Than Gay: A Citizens’ Report on The Status of
Homosexuality in India, ABVA, (May 12, 2019, 21:41 PM),
https://docs.google.com/file/d/0BwDlipuQ0I6ZMXVmNWk0ajdqWEU/edit
14
Id.
15
Aniruddha Dutta, supra note 4 at 230.

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draw a comparison between other jurisdictions. With the help of doctrinal method, the
proposed study attempts to establish the need for transgender inclusiveness of sexual
offences under criminal law in India to further the human rights approach and
guarantee constitutional protection of the fundamental rights to the community. The
study strives to lay emphasis on the categorization of non-consensual sexual offences
as applicable to the community rather than bringing it under the umbrella of unnatural
offences in entirety. The study further examines and reflects on the relevant
constitutional and criminal law provisions, studies the judgement of the courts,
reviews the systematic studies previously conducted and the principles laid down in
international covenants to strengthen the argument of transgender neutrality of sexual
offences.

1.3 Objectives
1. To trace the history and analyse the vulnerability and marginalization of the
transgender community at the instance of the governmental institutions and
agencies.
2. To identify the positioning of the transgender community within the society
and the Indian Criminal Justice System.
3. To analyse the interplay of the transgender community within the legal system
in India and in other jurisdictions.
4. To recognise the need for transgender inclusiveness of sexual offences to
safeguard the sexual rights of the transgender community otherwise
susceptible to exploitation and harassment.

1.4 Hypothesis
1. The transgender community, like women, is susceptible to sexual offences like
outraging modesty (Section 354), sexual harassment (Section 354A),
Disrobing (Section 354B), Voyeurism (Section 354C), Stalking (Section
354D), Rape and aggravated forms of rape (Section 376, 376 A-E) and insult
to their modesty (Section 509).
2. All cases of non-consensual carnal intercourse against the order of the nature
cannot be deemed to be unnatural offence under Section 377 and have to be
categorised as distinct sexual offences as is done for women and therefore

4|Page
 requires transgender neutrality of sexual offences under Indian Penal Code,
1860 so as to include the LGBTQA community.

1.5 Research Questions

1. Whether the LGBTQA community is a vulnerable class facing social
exclusion at the instance of governmental institutions and the members of the
society?
2. Whether the LGBTQA community, like women, is susceptible to the offence
of outraging modesty, sexual harassment, voyeurism, disrobing, stalking, rape,
etc.?
3. Whether non-categorization and non-application of sexual offences in favour
of the LGBTQA community is in violation of Article 14, 15 and 21 of the
Constitution?
4. Whether non-consensual sexual conduct under Section 377 is an effective
alternative to punish offences in the nature of outraging modesty, sexual
harassment, voyeurism, disrobing, stalking, rape, etc. committed against the
LGBTQA community?
5. Whether decriminalization of Section 377 calls for transgender neutrality of
sexual offences so as to include the LGBTQA community within its purview?

1.6 Research Methodology

The dissertation has adhered to the qualitative method and reach to the findings by
analysing the literature available in the field of study. The researcher has adopted the
deductive approach also called the top-bottom approach. The researcher tends to test
the hypothesis after analysis the gravity of sexual offences committed against the
LGBTQA community by examining online and offline sources including opinion of
eminent scholars, books, journals, articles, committee reports, judicial decisions.
Thereafter, the sources have been analysed and the dissertation has built upon the
concept and highlighted the linkage between the concepts like the construction of
power dynamics and positioning of sexual minorities, the LGBTQA Community, in
the society.

5|Page
1.7 Scheme of the Study

Chapter I of the dissertation titled “INTRODUCTION” tries to identify the area of

study and lays down the aims and objectives behind the research study and introduces
the contemporary positioning of the LGBTQA community as being the oppressed and
vulnerable class in the society even after its historical presence for centuries and
followed by the second chapter.

Chapter II of the dissertation titled “SOCIAL EXCLUSION AND

VULNERABILITY OF THE LGBTQA” aims to establish that the community
belongs to the marginalised sect. of the society, deprived of basic human rights and
fundamental rights for ages through systemic review of previous conducted studies. It
further asserts that there is a need to protect the sexual rights of the community and
induce non-discriminatory practises on the basis of sexual preferences and gender
identity to encourage them to come out of the closet. It is then followed by the third
chapter.

Chapter III of the dissertation titled “INTERFACE OF LGBTQA WITH LEGAL

SYSTEMS” wherein the positioning of the community in terms of the civil and
criminal rights they have in India and other jurisdictions including Canada, South
Africa, United States, Armenia, Australia, etc. is ascertained. Factors like legality of
homosexuality, protection from sexual offences against the LGBTQA community,
etc. are determined. The chapter is then followed by chapter four.

Chapter IV of the dissertation titled “CRIMINAL JUSTICE SYSTEM IN INDIA

AND IMPACT OF JUDICIARY ON THE LGBTQA” aims to trace back the history
of trans activism in India and development of legal and constitutional rights of the
community in addition to their recognition through the NALSA judgment is
discussed. The objective is to analyse the development, both social and legal, in the
stature of the LGBTQA community and the role of judiciary in such elevation. The
chapter is then followed by the chapter five.

Chapter V of the dissertation titled “SECTION 377 AND ITS

DECRIMINALIZATION” aims to analyse the jurisprudential essence of this 158 year
old Section based on the Victorian ideologies and its implications in the contemporary
legal atmosphere. The community even though is recognised as a distinct third gender

6|Page
exiting in the society after the NALSA decision and they have neither gained social
liberty or the legal liberty in terms of choosing their sexual partners. The law under
Section 377 IPC has become a tool of persecution and criminal prosecution,
especially at the instance of the state machineries like the police agency, etc. The
chapter then acknowledges the decriminalization of Section 377 IPC, through the
Navtej Singh Johar decision of the Supreme Court, to the extent of consensual carnal
intercourse/sexual conduct between two adults in private without any discrimination
premised on the sexual orientation and/or gender identity. However, the chapter
criticises the failure on part of the court to equate non-consensual instances of carnal
intercourse with sexual assault as provided for under Section 375 IPC and identifies
the need to amend the criminal law with respect to sexual offences and make it
transgender inclusive, presently exclusive to women, owing to the vulnerability of the
community. This section is followed by chapter six of the dissertation.

Chapter VI of the dissertation titled “NEED FOR TRANSGENDER NEUTRALITY

OF SEXUAL OFFENCES” is the penultimate chapter of the dissertation and one of
the most crucial ones. The chapter posses arguments proposing transgender neutrality
of sexual offences under the IPC and under The Sexual Harassment of Women at
Workplace (Prevention, Prohibition And Redressal) Act, 2013 and The Protection of
Women from Domestic Violence Act, 2005. This chapter is followed by conclusion.

Chapter VII of the dissertation titled “CONCLUSION” illustrates the justification of

the hypothesis in affirmation and reasserts the need for transgender neutrality of
sexual offences so as to extend the protection to the transgender community and
secure for them both social and legal liberty and a dignified life to co-exist in the
society and break hetero-normative societal standards prevailing for centuries.

7|Page
 CHAPTER - II

SOCIAL EXCLUSION AND VULNERABILITY OF

LGBTQA

“We must stand on our own feet and fight as best as we can for our
rights. So carry on you agitation and organise your forces. Power and
prestige will come to you through struggle”

Contemporarily and historically, transgenderism prevailed across the globe including

in the Native American culture1, Indian culture2 and Greco-Roman culture.3 In
addition to this, even many deities sported a blend of feminine and masculine
characteristics or were capable of shifting from one gender to the other.4
Homosexuality was portrayed and practiced unreservedly in Indian Literature and Art
for over 2000 years.5 In fact, most of the slaves and nobles during the legacy of
Muslim rule in India were eunuchs.6

The advent of the colonial rule in India, embarked a drastic change whereby Lord
Macaulay included the Victorian draconian law7 under Section 377 of the Indian
Penal Code, 1860. In accordance with this law, any carnal intercourse against the
order of the nature was made punishable with imprisonment.8 Even though no
mention was made specifically to homosexuality, it was deemed to be a provision to

1
Two Spirit People.
2
Men that choose to worship the feminine aspect of the divine through voluntary castration or because
they were born intersexed.
3
The god Hermaphrodites, son of Hermes and Aphrodite; and the acceptance of the cross-dressing
behaviour of Hercules and Achilles.
4
Dionysus; Lord Vishnu the male counterpart and Goddess Mohini, the female counterpart of the same
Deity.
5
Geetanjali Misra, Decriminalizing Homosexuality in India, TAYLOR AND FRANCIS GROUP (May 13,
2019, 14:49 PM), https://www.jstor.org/stable/40647442.
6
Imaduddin Rayhan, the Chief Minister under Sultan Balban, and Kafur Hazardinari, the Army
Commander and Vice Regent of Allauddin Khilji, were eunuchs.
7
The Buggery Act, 1533, No. 25 Hen. 8 c. 6, 1533.
8
Unnatural offences.—whoever voluntarily has carnal intercourse against the order of nature with any
man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either
description for a term which may extend to ten years, and shall also be liable to fine.
Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence
described in this Section.

8|Page
avert homosexual relationships.9 The dignified living of sexual minorities was resisted
both by the state and the society at large leading to their exclusion from the society
punishing them to marginalised ends and making their existence vulnerable.

Social exclusion refers to an accumulation of convergent processes along with

successive ruptures coming from the society, economy and politics10 leading to
gradual distancing of the person, groups or community concerned and giving inferior
positioning in terms of resources, central power and the prevailing values.11 Depriving
a particular Section of the society from asserting their rights and to participate in the
political, social and economical processes is equivalent to social exclusion at the
behest of the society and the state.12 In essence, it is the denial of basic rights and
dignified status to a Section owing to the prevailing norms in the society. It is driven
by the lopsided power dynamics at the social, economical, political and cultural
interface.13 The social aspects include lack of access to education, social protection,
legal and health services, etc.; economical aspects include hindrance in employment
opportunities, limited access to essential commodities and constrained livelihood, etc.;
cultural aspects include the traditional practises of exclusion, pre-set norms of their
lifestyles, etc.; and lastly the political exclusions include deprivation of their
recognition as a third gender, the fundamental and citizenry rights, human rights, non-
inclusion in debates and discussions specifically for their rights, etc. This explicit
relationship between the exclusions and their rights showcases discrimination solely
on the basis of gender orientation of this community. They are excluded from the
majority community and the minority community, usually based on linguistic, cultural
or religious minorities, and thereby go unrecognised.

9
Rukmini Sen, Breaking Silences, Celebrating New Spaces: Mapping Elite Responses to the ‘Inclusive’
Approach, NUJS LAW REVIEW (May 13, 2019, 10:19 AM), http://nujslawreview.org/wp-
content/uploads/2016/12/rukmini-sen.pdf.
10
Jordi Estivill, Concepts and Strategies for Combating Social Exclusion: An Overview,
INTERNATIONAL LABOUR OFFICE (Mar. 29, 2019, 20:08 PM),
http://www.ilo.org/public/english/protection/socsec/step/download/96p1.pdf.
11
Id. at 131.
12
Jo Beall and Laure-Helene Piron, Department for International Development - Social Exclusion
Review, OVERSEAS DEVELOPMENT INSTITUTE (Mar. 23, 2019, 07:55AM),
https://www.odi.org/sites/odi.org.uk/files/odi-assets/publications-opinion-files/2301.pdf.
13
Jennie Popay, Sarah Escorel, Mario Hernandez, Heidi Johnston, Jane Mathieson and Laetitia Rispel,
Understanding and Tracking Social Exclusion, WORLD HEALTH ORGANIZATION (May 7, 2019, 14:53
PM),
https://www.who.int/social_determinants/knowledge_networks/final_reports/sekn_final%20report_042
008.pdf?ua=1

9|Page
Every society is deemed to be heterogeneous comprising of only two genders – the
male and the female and the third gender often remains unrecognised. This paves a
path for identity crisis amongst the minority community. Owing to either the societal
pressure or for the purposes of legal formalities they have to either opt out of the two
genders. They don’t connect with the gender; they are confused about their identity
and often feel trapped in their own bodies in the dichotomous gendered society. These
sexual minorities are more often than not are publically humiliated and ridiculed
owing to their sexual orientation not just but the general public but also by the police
agencies owing to their institutional ideologies.

In India, this struggle of deprivation is also drawn from the governmental policy
framework recognizing only two sexes in according right to vote, marry, claim
property, a formal identity through passport or in other governmental identities. Their
inability to procure subsidies for food, health, employment or education further adds
to their misery forcing them to either engage in sex work or beggary, thereby again
exposing them to violence and vulnerability at the instance of the law enforcement
agencies. It is significant to take note that an individual cannot replace his/her sexual
orientation or identity in order to adhere to the normative standards of the society.

Shakespeare once said “What’s in a name?” which in the present sense can be
understood that for the purposes of identification name may be a convenient concept
but the characteristical essence is the core of the identity and not the name per se. The
Supreme Court in 2014 gave legitimate recognition to the third gender furthering their
fundamental and constitutional rights.14 The court recognised the International
conventions15 and the Yogyakarta principles relating to sexual orientation and gender
identity16 to further the recognition of the rights of the third gender. However, it is yet
to be unfolded whether this recognition has remained on paper or has been accepted
by the society at large. Mere self-identity formalization neither results in freedom to
the LGBTQA from the shackles of the oppressive patriarchy nor does it safeguard

14
NALSA, supra Chapter I at 9.
15
International Covenant on Civil and Political Rights, Dec. 16, 1966, S. Treaty Doc. No. 95-20, 6
I.L.M. 368 (1967), 999 U.N.T.S. 171; Universal Declaration of Human Rights, G.A. Res. 217A
(III),U.N. Doc. A/810 at 71 (1948).
16
Yogyakarta Principles: Principles on the Application of International Human Rights Law in Relation
to Sexual Orientation and Gender Identity, INTERNATIONAL COMMISSION OF JURISTS (May 15, 2019,
17:11 PM), https://www.refworld.org/docid/48244e602.html.

10 | P a g e
them from the traditional institutional ideologies of the law enforcement agencies and
the society.

The Supreme Court has recognised the fact that the sexual minorities are the
marginalised and vulnerable Sections of the society. Justice Sikri reiterating the
theory of justice as fairness17 with the conception of distributive justice18 derived the
jurisprudential essence to do justice to the vulnerable community in the society of
which the third gender is part and parcel19 and the aftermath of this is the recognition
of rights as are available to other marginalised Sections of the society.

Additionally, the report by the United Nations Human Rights Council stated that
transphobic and homophobic violence either physical (including rape, sexual
violence, trafficking and kidnapping, etc.) or psychological (intimidation, coercion,
discrimination and exclusion, etc.) are recorded in all regions around the world.20 In
essence, it is a gender-based violence against individuals defying the normative
standards prevailing in the society whereby sexuality is stigmatized and
homosexuality is discredited as against heterosexuality. 21

Sexual violence against this marginalized sect. can be categorised as sexual assault,
rape, sexual abuse, sexual aggression, sexual harassment, sexual victimization, other
sexual offences like voyeurism, stalking, disrobing, acid attacks, etc. wherein the
individual belonging to this vulnerable group is forced to indulge into unwanted and
non-consensual sexual activity. And it will be wrong to cover all the non-consensual
offences against the third gender under the garb of sodomy as provided for under the
Indian legal framework. Instead, it is important to classify distinct sexual offences that
can be committed against the third gender, as it is in case of women, to further protect
the constitutional rights of the LGBTQA Community.

17
John Rawls, Justice as Fairness, THE PHILOSOPHICAL REVIEW (May 11, 2019, 18:16 PM),
http://links.jstor.org/sici?sici=0031-8108%28195804%2967%3A2%3C164%3AJAF%3E2.0.CO%3B2-
Y.
18
Amartya Sen, The Idea of Justice, MASS: BELKNAP PRESS OF HARVARD UNIVERSITY PRESS,
CAMBRIDGE (May 11, 2019, 20:19 PM),
https://dutraeconomicus.files.wordpress.com/2014/02/amartya-sen-the-idea-of-justice-2009.pdf.
19
Supra note 14 at 129.
20
Karel Blondeel, Violence Motivated by Perception of Sexual Orientation and Gender Identity: A
Systematic Review, BULLETIN OF WORLD HEALTH ORGANIZATION (May 09, 2019, 06:47 AM),
http://dx.doi.org/10.2471/BLT.17.197251.
21
United Nations Human Rights Council, Discriminatory Laws and Practices and Acts of Violence
Against Individuals Based on their Sexual Orientation and Gender Identity, HRC/19/41/2011.

11 | P a g e
It is also imperative to recognise the rights of this Section which is otherwise at the
risk of developing poignant distress syndrome owing to stigmatization and
discrimination at the behest of the populace.22 They are more susceptible to verbal,
physical and sexual abuse which is manifested in their behaviour, anxiety, symptoms
of depression, suicidal ideation23 and psychological disturbances.24 A study in
Denmark reflected that the same-sex partners are more prone to suicidal tendencies.25
In addition to this, the sexual minorities are more prone to HIV, sexually transmitted
disease, cancer causing infections and other mental conditions owing to their sexual
orientation resulting in what is known as Syndemic Vulnerability.26

The World Health Organization conducted 57 empirical studies in totality to study the
prevalence of sexual violence motivated by perceptions of gender identity and sexual
orientation and reached to a conclusion that there is high prevalence of sexual
violence experienced by gender minorities and particularly, the transgender which
may be explained by their involvement in sex work.27 Nevertheless, the study was
silent on the fact that whether this sexual violence against the sexual minority is more
as compared to the rest of the populace.28 However, research has shown that the
homosexuals are 1.47 times more likely to be victimized as against the
heterosexuals.29

22
Mark L. Hatzenbuehler, Katie A. McLaughlin, Susan Nolen-Hoeksema, Emotion Regulation and
Internalizing Symptoms in a Longitudinal Study of Sexual Minority and Heterosexual Adolescents,
THE JOURNAL OF CHILD PSYCHOLOGY AND PSYCHIATRY, WILEY ONLINE LIBRARY (May 09, 2019,
11:37 AM), https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1469-7610.2008.01924.x.
23
Ann P. Haas, Philip L. Rodgers, and Jody L. Herman, Suicide Attempts Among Transgender and
Gender-Nonconforming Adults, AMERICAN FOUNDATION FOR SUICIDE PREVENTION AND THE
WILLIAMS INSTITUTE (May 09, 2019, 12:01 PM), http://williamsinstitute.law.ucla.edu/wp-
content/uploads/AFSP-Williams-Suicide-Report-Final.pdf.
24
Harvey J. Makadon, Ending LGBT Invisibility in Health Case: The First Step in Ensuring Equitable
Care, CLEVELAND CLINIC JOURNAL OF MEDICINE (May 09, 2019, 13:39 PM),
10.3949/ccjm.78gr.10006.
25
Robin M. Mathy, Susan D. Cochran, Jorn Olsen, Vickie M. Mays, The Association Between
Relationship Markers of Sexual Orientation and Suicide: Denmark, SOCIAL PSYCHIATRY AND
PSYCHIATRIC EPIDEMIOLOGY (May 10, 2019, 15:17 PM), 10.1007/s00127-009-0177-3.
26
Sarah S. Willen, Michael Knipper, Cesar E Abadía-Barrero, Nadav Davidovitch, Syndemic
Vulnerability and The Right to Health, THE LANCET JOURNAL (May 06, 2019, 17:53 PM),
http://dx.doi.org/10.1016/S0140-6736(17)30261-1.
27
Don Operario, Toho Soma, Kristen Underhill, Sex Work and HIV Status among Transgender
Women: Systematic Review and Meta-Analysis, JOURNAL OF ACQUIRED IMMUNE DEFICIENCY
SYNDROMES (May 06, 16:09 PM), 10.1097/QAI.0b013e31816e3971.
28
Karel Blondeel, Violence Motivated by Perception of Sexual Orientation and Gender Identity: A
Systematic Review, BULLETIN OF WORLD HEALTH ORGANIZATION (May 09, 2019, 18:12 PM),
https://www.who.int/bulletin/volumes/96/1/17-197251/en/.
29
Id.

12 | P a g e
Another study reflected abuse of power by the persons in position of authority
extending to sexual assault. As per this study, 15% of the transgender individuals
reported sexual assault in jail or while in police custody.30 5-9% of transgender were
sexually assaulted by police officers31 and another 10% of the transgender populace
was sexually assaulted by the health care professionals.32

As far as the Adult Sexual Assault is concerned, a systematic review of 87 studies was
undertaken and it was reflected that the certain Section of population like the gay and
bisexual men reportedly faced higher adult sexual assault as against the men
otherwise in the general population.33 Another systematic review of 75 studies in the
United States reported the life time sexual assault victimization, adult sexual assault,
child sexual assault and intimate partner sexual assault among the gay, lesbian or
bisexuals.34 Another study conducted in 2009 reflected that sexual violence against
the transgender community starts at an early stage in life and throughout their life they
are at high risk of multiple kinds of sexual violence.35

In India, Telangana Hijra Transgender Samiti, a non –governmental organization in a

telephonic conversation stated that since June 2018 to December 2018, they reported
approximately 40 cases to the local police who either refused to register the FIR or
misbehaved with the victim belonging to the LGBTQA community. Another non-
governmental organisation Sangama in Bangalore stated that while they were dealing
with sexuality minorities they was repressed by the police; the police barred people

30
Jamie M. Grant, Lisa A. Mottet, Justin Tanis, Jack Harrison, Jody L. Herman, and Mara Keisling,
Injustice at Every Turn: A Report of the National Transgender Discrimination Survey, NATIONAL
CENTER FOR TRANSGENDER EQUALITY AND NATIONAL GAY AND LESBIAN TASK FORCE (May 06, 2019,
18:49 PM), https://www.thetaskforce.org/injustice-every-turn-report-national-transgender-
discrimination-survey/.
31
National Coalition of Anti-Violence Programs, Hate Violence Against Lesbian, Gay, Bisexual, and
Transgender People in the United States, NATIONAL COALITION OF ANTI-VIOLENCE PROGRAMS (May
09, 2019, 22:07 PM), https://avp.org/wp-content/uploads/2017/04/2011_NCAVP_HV_Reports.pdf
32
Grant, Mottet, Tanis, Harrison, Herman, and Keisling, supra note 30 at 31.
33
Zoë D. Peterson, Emily K. Voller, Melissa A. Polusny, Maureen Murdoch, Prevalence and
Consequences of Adult Sexual Assault of Men: Review of Empirical Findings and State of The
Literature, CLINICAL PSYCHOLOGY REVIEW (Feb. 14, 2019, 21:17 PM),
https://doi.org/10.1016/j.cpr.2010.08.006.
34
Emily F. Rothman, Deinera Exner, Allyson L. Baughman, The Prevalence of Sexual Assault Against
People Who Identify as Gay, lesbian or Bisexual in the United States: A Systematic Review, SAGE
JOURNALS(Apr. 11, 2019, 16:32 PM), https://doi.org/10.1177/1524838010390707.
35
Rebecca L. Stotzer, Violence against transgender people: A review of United States data, ELSEVIER
AGGRESSION AND VIOLENT BEHAVIOUR (Apr. 01, 2019, 15:41 PM)
https://doi.org/10.1016/j.avb.2009.01.006.

13 | P a g e
from seeking their services or from visiting their offices and ordered holding of
meetings, if any, outside the city.

The state of affair for activists dealing in LGBTQA services is more or less the same
and it is a saddening state that the police authorities, the people charged with the
responsibility to protect citizenry, are causing hindrance and hampering the social
liberty sought by the community. The next chapter deals with the rights of the
community and their interplay with the legal systems in other jurisdictions and India.

14 | P a g e
 CHAPTER - III

INTERFACE OF LGBTQA WITH THE LEGAL

SYSTEMS

United States

The Supreme Court of United States in case of Obergefell1 emphasized on the

quandary of homosexuals observing that the state itself had condemned same-sex
intimacy as immoral and penal until the 20th century. The individuals were devoid of
dignified identity and living owing to the mainstream societal conventions and
homosexual stereotyping.2 The court also recognised the prevalent discrimination
amongst the employees because of their sexual orientation and preferences and held
such discrimination to be discrimination on the basis of sex3 on the rationale that it
entrails unfavourable treatment to the homosexuals.

In 2003, the court while decriminalizing sexual activities amongst homosexuals

observed that it was a prerogative between two adults who consent to the sexual
conduct with full knowledge of the consequences associated with it and the same did
not injury either the public or government or children or non-consenting
homosexuals.4 In furtherance of their right to liberty, in light of the Due Process
Clause, central to the constitutional scheme, they are entitled to engage in such
conduct without the state intervention.5

However, there is no federal law in United States outlawing discrimination against the
LGBTQ except the federal executive orders and thence; LGBTQ residents of certain
states are unprotected.6 The common myth that sexual assault is an exclusive
heterosexual offence has to elude with passage of time and it is to be recognised that
sexual assault can be committed against anyone, including the LGBTQ community.7
More often they are expected to remain silent and the crime goes unreported making

1
Obergefell, et al. v. Hodges, Director, Ohio Department of Health, et al., 576 US (2015).
2
Price Waterhouse v. Hopkins, 7490 U.S. 228, 231 (1989).
3
Kimberly Hively v. Ivy Tech Community College of Indiana, 830 F.3d 698 (7th Cir. 2016).
4
Lawrence v. Texas, 539 U.S. 558, 562 (2003).
5
Roberts v. United States Jaycees, 468 U.S. 609, 610 (1984).
6
Stotzer, supra note Chapter II at 35.
7
Tarynn M. Witten and Eller, Anti-transgender violence: The “Invisible” Human Rights Violation,
PEACH REVIEW: AN INTERNATIONAL QUARTERLY 1, 4-9 (1999).

15 | P a g e
them more vulnerable and easy to trap victim.8 The Gender Motivated Violence Act9
enacted by the New York City makes gender oriented violence unlawful and the
violence under this act includes sexual violence. The court has held that this Section is
applicable to the transgender community.10

Apart from this there is no federal law in the United States to safeguard the LGBTQA
community from offences of sexual assault and violence.

South Africa

In the Apartheid era (1948 - 1994) when the country was governed by the National
Party, homosexuality was considered to be a criminal offence punishable with
imprisonment. The community was coerced to undergo gender reassignment surgery
to cure their sexual orientation and keep it within the bounds of the male-female
dichotomy. This law led to the harassment and social exclusion of the LGBTQA
community in Africa. However, in the Post-Apartheid era, in 1993 the Bill of Rights
recognised the rights of the LGBTQA community prohibiting discrimination, sexual
violence, etc. and the same were incorporated in the Constitution in 1996.11 The South
African Constitution became the first in the world to explicitly recognise the right of
the individuals of distinct sexual orientation.12 Of late, the constitutional court in
South Africa held that any law prohibiting homosexual conduct in private between
two consenting adulating will be considered to be in violation of the constitutional
mandate13 and the law on sodomy infringes the constitutional right to privacy and
equality of the LGBTQA community14.15

Regardless of bestowment of such rights, the community faces sexual violence;

instances of corrective rape also called homophobia or curative rape with the

8
California Coalition against Sexual Assault, Focusing on Pride: Supporting Lesbian, Gay, Bisexual
and Transgender (LGBT) Survivours of Sexual Assault, CALIFORNIA COALITION AGAINST SEXUAL
ASSAULT (Apr. 11, 2019, 15:29 PM), https://www.calcasa.org/wp-content/uploads/2010/12/LGBT-
Part-1-UPLOAD-v2-12.29.10.pdf.
9
The Gender Motivated Violence Act, 42 U.S.C. § 13981 (2000).
10
Schwenk v. Hartford, 204 F. 3d 1187 (9th Cir. 2000).
11
Constitution of the Republic of South Africa, 10th December 1996 available at
https://www.refworld.org/docid/3ae6b5de4.html.
12
Supra note 9 at Section 9.
13
National Coalition for Gay and Lesbian Equality v. Minister of Justice, 1999 (1) SA 6 (CC).
14
S v. Kampher, 1997 (4) SA 460 (C).
15
High Court of South Africa (Witwatersrand Local Division): National Coalition for Gay and Lesbian
Equality et al. v. The Minister of Justice et al., INTERNATIONAL LEGAL MATERIALS (May 05, 2019,
14:02 PM), http://www.jstor.org/stable/20698832.

16 | P a g e
objective to cure the sexual orientation and make the victim heterosexual; sexual
assault; re-victimization and inaction by of the police agency, etc.16 The case of is of
interest as despite of their being laws and policy framework to safeguard the rights
and interests of the LGBTQA community, the inefficacy in implementation has taken
a troll. It thus becomes incumbent on the governmental institutions to ensure that the
provisions are effectively implemented in honour of the LGTBQA community.17

United Kingdom

In United Kingdom, The Gender Recognition Act, 2004 coerces an individual to stay
within the binary of being either a male or a female and simultaneously prove that
they have been living, at least for two years, in their ‘acquired gender’ before granting
them recognition under the Act. Although, the British Courts, who authored the law in
India, decriminalised homosexuality as early as in 196718 and observed that sexual
orientation of an individual is established even before the age of puberty19 and hence
setting up a minimum age of consent is an uncalled for obligation on part of the
legislature.

European Union

Historically, the Corpus Juris Civilis of Justinian provided for public castration and
then execution of all persons who indulged in homosexual conduct. It was considered
to a capital crime in most of the European Countries. Out of 26 countries, 16 countries
have recognised and legalised same-sex partnership, marriage and rights arising out of
such union as against the others.

Recently, the Secretary General of the Council of Europe issued a mandate

prohibiting sexual attacks against the LGBT community rampant across Europe and
emphasised on the need for stringent anti-discrimination laws to safeguard this
Section of the society. Additionally, The European Court of Human Rights in 1981

16
Dipika Nath, We’ll Show You You’re a Woman: Violence and Discrimination against Black Lesbians
and Transgender Men, HUMAN RIGHTS WATCH (May 09, 2019, 02:41 AM),
https://www.hrw.org/report/2011/12/05/well-show-you-youre-woman/violence-and-discrimination-
against-black-lesbians-and#7335e4.
17
Id.
18
The Sexual Offences Act, 1967 c. 60.
19
Euan Sutherland v. United Kingdom, (2001) ECHR 234.

17 | P a g e
decriminalized same-sex sexual behaviour and ruled that criminalizing the same is in
violation of the protection of an individual’s private life.20

Also, in a progressive set, Commissioner of Human Rights, Council of Europe has

recommended need for greater protection against the LGBT people in 2016. However,
there is no legislative mandate ensuring protection of the LGBTQA community in
European Union.

Canada

Canada is considered to be a LGBTQA community friendly across globe and in 1995,

the supreme court of Canada recognised that sexual orientation is implicit in “sex”
under Section 15 of the Canadian Charter of Rights and Freedom, 198221 and thus any
discrimination against LGBTQA on the basis of sexual orientation is prohibited.22 In
addition to this, even the Canadian Human Rights Act23 explicitly prohibits
discrimination on the basis of gender identity and sexual orientation24.

In 1969, homosexuality in Canada is partly decriminalised to the extent of sexual acts

between two consenting adults above the age of 21 years and in private. Also, same
sex-marriage and parenting rights have been recognised in Canada.25 Although, there
is no clear mandate of law to criminalize sexual offences against the LGBTQ
community, reports suggest that 43% and 42% of female and male bisexuals, 40% of
gay, 49% of transgender, 33% of lesbians have been sexually harassed.26

Other Jurisdictions:

In Armenia, homosexuality has been legalised since 2003, however, pragmatically it

remains to be a taboo leading to societal out casting. Same sex-marriage within the
country has been constitutionally banned; however, the law recognises same-sex

20
Dudgeon v. The United Kingdom (1982) 4 ECHR 149.
21
Egan v Canada, (1995) 2 SCR 513.
22
Delwin Vriend & ors. v. Her Majesty the Queen in Right of Alberta & ors., (1998) 1 SCR 493.
23
Canadian Human Rights Act, R.S.C., 1985, c. H-6.
24
M v. H, (1999) 2 S.C.R. 3.
25
Robert Wintemute, Sexual orientation and the charter: The achievement of formal legal equality,
1985-2005 and its limits, MCGILL LAW JOURNAL, (May 15, 2019, 01:43 AM),
https://heinonline.org/HOL/Page?handle=hein.journals/mcgil49&div=47&id=&page=&t=1558409286
&collection=journals&t=1558409286.
26
Catherine Taylor, Every Class in Every School: Final Report on the First National Climate Survey
on Homophobia, Biphobia and Transphobia in Canadian Schools, EGALE CANADA (May 15,
2019, 02:34 AM), https://egale.ca/wp-content/uploads/2011/05/EgaleFinalReport-web.pdf.

18 | P a g e
marriages performed abroad since 2017. It is one of the countries to have signed the
Joint statement on ending acts of violence and related human rights violations based
on sexual orientation & gender identity, 2011.27 The government recognises sexual
and physical violence against the LGBTQ Community within the country but there is
no law to protect them against the same.

The Supreme Court of Belize, in 2016 became the first commonwealth court declare
the laws criminalizing same-sex intimacy as unconstitutional by declaring Section 53
of the criminal code as ultra vires and thereby affirming LGBTQA rights to privacy,
liberty, equality and a dignified living.28

Even Bangladesh, the Supreme Court has recognised the existence of the third gender
to bestow rights and liberties on the LGBTQ community which has been previous
denied to them for decades. However, no affirmative legislative action has been taken
to ensure their protection against sexual harassment and assault.

Similarly, in Australia, any change in the gender of an individual can be legitimately

recognised after the age of 18 years and it is imperative that such individual should be
unmarried and must have undergone some medical treatment or gender affirmation
surgery before the state recognises them as such. The court in case of Nicholas
Toonen v. Australia29 held that the criminal statute criminalizing sexual acts between
men was in violation on the mandate laid down under Article 2 and 17 of the
International Covenant on Civil and Political Rights.30

However, there is no criminal law safeguarding them explicitly against the sexual
violence. Instead, all the aforementioned jurisdictions, in order to abolish sexual
assault, exploitation and violence against the LGBTQ community, take the aid of the
International Conventions on Human rights.

27
Ending Acts of Violence and Related Human Rights Violations based on Sexual Orientation &
Gender Identity, HUMAN RIGHTS COUNCIL ON LGBT RIGHTS (May 14, 2019, 01:24 AM),
https://geneva.usmission.gov/2011/03/22/lgbtrights/.
28
Caleb Orozco v. Attorney General of Belize, Claim no. 668/2010 (2016)
29
Nicholas Toonen v. Australia Communication, No. 488/1992, UN Doc CCPR/C/50/D/488/1992
(1994).
30
Supra Chapter II at 15.

19 | P a g e
Jurisdictions like Canada, Ireland, England and Wales, States in Australia, Finland,
and some states in the United States31 have adopted gender-neutral laws to making it
inclusive, however, the laws lack uniformity.32 The definition of sexual offences has
been expanded to include penetrative and non-penetrative sexual acts while others
have recognised that even men can be victims of rape.33 However, the third gender is
begotten and their rights as victims of sexual offences are not taken into account in
the aforesaid jurisdictions.34

India

In India, Section 377 exists since the Britain Buggery Act, 1533 enacted by King
Henry VIII, when the country was colonised, which prohibited carnal intercourse
against the order of the nature and termed it as an unnatural offence. This led to the
marginalization of the LGBTQA community since the Victorian era. While the law of
similar nature was abolished in many western countries, the post-colonial countries
like in Africa and Asia continued to retain it.

The community has suffered ridicule, denial of basic rights, sense of gender identity
and abuse at the instance of the state authorities and the society. Their existence was
ad infinitum questioned on grounds of social morality, public indecency and
obscenity. The community struggled to pave its path and co-exist in a society at the
cost of humiliation and disgrace. In 2009 there was a ray of hope for the community
in Delhi as the Delhi High Court read down the law under Section 377 IPC to the
extent of consensual sexual intercourse between two consenting homosexual adults.
The rationale was to secure health care for the community which was otherwise prone
to HIV/AIDS. However, the decision gave no legitimate recognition given to the third
gender and the hetero-normative societies understood only the male-female
dichotomy.

The atrocities faced by the community were untold until 2010, when Professor Siras
was suspended from the Aligarh University after having clandestinely photographed

31
Corinne Lennox and Mathew Waites, Human Rights, Sexual Orientation and Gender Identity in the
Commonwealth: From History and Law to Developing activism and transnational dialogues,
UNIVERSITY OF LONDON (May 08, 2019, 09:26 AM), https://www.jstor.org/stable/j.ctv512st2.5.
32
Philip N.S. Rumney, In Defence of Gender Neutrality Within Rape, SEATTLE JOURNAL FOR SOCIAL
JUSTICE (May 06, 2019, 01:57AM), https://digitalcommons.law.seattleu.edu/sjsj/vol6/iss1/40/.
33
United States v. Smith, 574 F.2d 988 (9th Cir. 1978).
34
Rumney, supra note 32 at 482.

20 | P a g e
with another man in a compromising position within the four walls of his house
without any concern as to his privacy. The mere presence of law criminalizing same
sex relations, irrespective of whether being consensual or non-consensual, gave room
for exploitation of the LGBTQA community.35 A consolidated compendium shows
blackmail, extortion, sexual assault including rape by the investigating agency, sexual
hate crimes and sexual assault.36 Abuse of power by the police officials is a matter of
routine owing to the age-old intolerance against the sexual minorities in the societal
structure.37

Thereafter, in an appeal against the Naz Foundation decision, the Supreme Court in
201338 reinstituted the provision of Section 377 IPC as it was prior to the 2009
decision holding it to be constitutional. The court further reiterated that the decisions
of the foreign courts are only persuasive in nature and not binding on the Indian
Courts and A law should not de decriminalised and be made unconstitutional o0nly
because courts in other jurisdictions are following this trend. The court went on to say
that India society is not ready for this revolutionary reform, especially when the
LGBTQA community constitutes only a miniscule minority. The judgment led to
LGBTQA processions and pride parades criticizing the decision as regressive and
thus, caused hue and cry throughout the nation.

After this uproar and transactivism throughout the country, the Supreme Court in
2014 in the case of NALSA v. Union of India legally identified the third gender and
the transition from one gender to another. In furtherance of this, the court also
recognised the fundamental rights of the community under the Indian Constitution
and human rights and declared that all the civil and criminal statutes that do not
recognise third gender will be deemed to be discriminatory in light of Article 15 of
the Constitution. In accordance with Article 15 of the Constitution, any discrimination
on the ground of “sex” is prohibited at the instance of the state. The Court interpreted
“sex” to include sexual orientation and gender identity of an individual. The decision
directed affirmative action on part of the Central and the State Governments to ensure
non-infringement of fundamental rights, public health and social welfare of the

35
Geetanjali, supra Chapter II at 5, 24.
36
Id. at 24-25.
37
Id. at 26-28.
38
Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors., (2014) 1 SCC 1.

21 | P a g e
community in light of the Yogyakarta principles.39 This gave a sense of relief to the
LGBTQA community as their human rights were upheld despite the fact that they are
insignificant in number40; however, the pragmatic reality remained unchanged despite
the recognition.

The Ministry of Social Justice in a conversation with the trans activism, constituted an
expert committee to make recommendations in furtherance of the judicial mandate in
the NALSA decision, and on the basis of this report, the Rights of Transgender Bill,
2014was introduced in and adopted by the Rajya Sabha and the same was sent to the
Lok Sabha for consideration. The Bill had an inclusive definition of transgender.41

Meanwhile, in 2016, the speaker allowed the introduction of a fresh bill for
transgender community, as a private member’s bill, called The Transgender Persons
(Protection of Rights) Bill, 2016. The latter bill failed to secure the mandates so
declared by the NALSA decision. The failure of bill is threefold, firstly, the it does
not appreciate the diversity within the transgender community, that is, Lesbians, Gay,
Bisexual, Transgender, Queer, Asexual persons, jogappas, hijras, aravanis,
kinnars, and other socio-cultural gender identities instead it defined transgender
person as someone who is not wholly a male or a female or neither a male nor a
female or a combination of male and female and thereby retaining the male-female
dichotomy and; Secondly the bill recognises sexual offences and violence against the
community as crimes punishable with petty punishment of 6 months to 2 years and
does not include them within the ambit of sexual offences under the IPC, and; lastly,
the bill remained silent on the aspect of affirmative action on part of the central and
state government in terms of reservations for employment and education42 to ensure
adequate representation of the otherwise marginalised community and further the
mandate laid down by the NALSA decision. After the appointment of the standing

39
Yogyakarta, supra Chapter II at 16.
40
NALSA, supra Chapter I at 9, Para 123.
41
All persons whose own sense of gender does not match with the gender assigned to them at birth.
They will include trans-men & trans-women (whether they have undergone sex reassignment surgery
or hormonal treatment or laser therapy, etc.), gender queers and a number of socio cultural identities,
such as kinnars, hijras, aravanis, jogtas, etc.
42
Aniruddha, supra Chapter I at 4, 235.

22 | P a g e
committee, around 55 recommendations were proposed but all of them were blatantly
rejected and the bill was kept intact in its original form.43

A modified version of this 2016 Act, called the Transgender Persons (Protection of
Rights) Bill, 2018 was passed by the Lok Sabha falls short to embrace the struggle of
the LGBTQ community and in essence the opinion of the community itself was not
taken into account. In nutshell, it does not recognise the third gender, their self-
identity and self determination in law; the bill does not make provisions for the
reservation of the LGBTQA community as socially and educationally backward class
for the purposes of education and employment to ensure adequate representation of
the marginalised community nor do the provisions lay down the with respect to health
care, legal awareness or welfare schemes amongst the community44 and thereby,
maintains the status qou of the community in terms of social exclusion and
vulnerability as against the NALSA mandate of inclusion.

The discussion in parliament neither suggested any amendment in the criminal and
civil law so as to include the third gender within the statute nor did they recognise the
instances of sexual assault and violence against the community at the behest of the
governmental agencies and by other individuals in the society. Therefore, it becomes
imperative to point of the lacunas and insist on the rectification of the same to do
justice to the struggle of the LGBTQA community. The next chapter traces the impact
the judiciary over the rights of the LGBTQA community and its role in the criminal
justice system in India.

43
Rachana Mudraboyina and L.C. Kranti, A Critiques of the Transgender Persons (Protection of
Rights) Bill, 2018, HUMAN RIGHTS LAW NETWORK (May 12, 2019, 11:31 AM), https://hrln.org/wp-
content/uploads/2019/01/Critique-of-the-TransBill.pdf.
44
Vishakha Choudhary and Vishesh Sharma, The Transgender Persons (Protection of Rights) Bill,
2018: A Tale of Reneged Promises, OXFORD HUMAN RIGHTS HUB (May 12, 2019, 13:17 PM),
http://ohrh.law.ox.ac.uk/the-transgender-persons-protection-of-rights-bill-2018-a-tale-of-reneged-
promises/.

23 | P a g e
 CHAPTER - IV

CRIMINAL JUSTICE SYSTEM IN INDIA AND IMPACT

OF JUDICIARY ON LGBTQA

“I am what I am, so take me as I am”1

The IPC does not provide for the definition of sexual offences and all sexual offences,
except Section 377, are made gender-specific, that is, the victim is always deemed to
be a woman while man is seen as the perpetrator.2 Sexual offences can be defined as
range of offences wherein the sexual sanctity and bodily integrity of an individual is
interfered with without his/her consent.3 Offences like rape, outraging the modesty,
sexual harassment, disrobing, stalking, and voyeurism are all offences sexual in nature
and remedy, under these provisions, lies only with the female victim in India.

As far as the rights of the LGBTQA community are concerned, there is no

acknowledgment of the same under the IPC except Section 377 which states that any
carnal intercourse against the order of the nature will amount to unnatural offence
regardless, whether it was consensual or non-consensual.4 Rather than assisting the
community, this Section proved to be a hindrance for their gender identity and
consensual sexual conduct between two consenting adults subjecting them to, more
often than not, harassment and victimization at the instance of the members of the
society and the police agency. The National Commission for Women in 19935
advocated deletion of Section 377 to give legitimacy to same sex relationships
between consenting adults. Even though it was considered to be a progressive step,
the commission did not take into account the views and concerns of the community
and additionally, for more than a decade the bill laid dormant.

Apart from Section 377 there is no reference to LGBTQA community as victims of

other sexual offences and presently, such offences are exclusive to women in spite of
the humiliation, harassment and sexual violence faced by the community owing to the

1
Johann Wolfgang von Goethe, German Philosopher quoted in Navej Singh Johar v. Union of India,
2018 (1) SCC 1, September 6, 2018
2
Rumney, supra Chapter III at 32.
3
Id. at 485-487.
4
Supra Chapter II at 8.
5
Sexual Violence against Women and Children Bill, 1993.

24 | P a g e
institutional ideologies.6 The rights of the sexual minorities were at a standstill until
the sexual minority activists and groups claimed striking down of Section 377 of the
Indian Penal Code, 1860 as unconstitutional and evade social banishment they faced
in the hands of the state institutions, the society and in terms of accessibility to
medical services.

In 1991, the AIDS Bhedbhav Virodhi Andolan (hereinafter referred to as “ABVA”)

published a report7 revealing incidents of extortion, blackmail and sexual harassment
and violence faced by the gay community at the instance of the police calling the
repeal of law under Section 377 that discriminates between the heterosexuals and the
homosexuals.8 It was followed by an uproar in 1994 when team of doctor in Tihar Jail
concluded that 90% of the inmates in the prison indulged in homosexual activity and
recommended facilitation of condoms to prevent STDs. However, Kiran Bedi,
inspector general of Tihar Jail refused the facilitation of condoms in jail on the pretext
that it will promote homosexuality.9 ABVA filed a writ petition for declaration of
Section 377 as ultra vires the constitution and demanding condoms for the inmates,
however, the petition was dismissed in 2001.

Later, Naz foundation (India) Trust, a non-governmental organization, filed a writ

petition with a plea to declare Section 377 as unconstitutional to the extent of sexual
acts between consenting adults of the same sex in 2001which was dismissed in limine
in 2004 and thereafter reinstated in 2006 on the order of the Apex Court. It was an
occasion to interrogate the sate machinery from a trans lens. To provide greater thrust
to the cause, the National AIDS Control Organization and ‘Voices Against 377’
extended their support to the petition. 10 In 2009, the Delhi High Court through Justice
Shah declared the 150 years old draconian law as unconstitutional and legalized
homosexual activities between consenting adults.11 The decision was justified with
the rationale that the very essence of the provision is against the human rights of the
miniscule citizenry.12 The judgment is of vital importance as it was in response to a
transactivism movement, upholding the rights of privacy and dignified life of the

6
NALSA, Supra Chapter I at 9.
7
Less Than Gay, supra Chapter I at 13.
8
Id. at 5.
9
Aniruddha Dutta, supra note 4 at 231-232.
10
Naz Foundation v. Govt. Of NCT of Delhi (2009) 160 DLT 277 (DB).
11
Id. at 82.
12
Id. at Para 80-81.

25 | P a g e
LGBQA community and in essence upholding the spirit of the constitution and
breaking the hetero-normative societal standards and accommodating the voices of the
sexual minority.13

The issue of gender neutrality of sexual offences first arose in Sudesh Jhaku v. K.C.
Jhaku in 199614 wherein the Delhi High Court insisted on the legislature to articulate
gender neutral criminal law.15 Thereafter, in 1999, the Supreme Court drafted issues
to be looked into by the Law Commission of India. In furtherance of this, the 172nd
Law Commission Report16, recommended substitution of the rape on law by a gender-
neutral law on sexual assault and additionally deletion of Section 377 of IPC.17 The
report did not take shape of an amendment until the introduction of the Criminal Law
Amendment Bill, 2012 making the offence of rape and sexual assault with regards to
the victim gender neutral.

However, prior to its enactment, the heinous Nirbhaya rape case happened leading to
the constitution of Justice Verma Committee.18 Before making such
recommendations, the Verma Committee paid heed to the voice of LGBTQA
community rights on sexual offences and the need for it to be gender inclusive. The
committee recommended retention of the law on rape and in addition making sexual
assault a gender neutral offence, unlike the 172nd report, by using term “person”
instead of “woman” for the purposes of defining victim of rape and sexual assault and
retaining the term “man” for the perpetrator and thereby bringing within its scope the
transgender community.19 In furtherance of this, the Criminal Law Amendment
Ordinance, 2013 undertook a completely gender neutral approach on the rape laws,
however, the Criminal Law Amendment Act, 2013 retained the gender specific
definitions, despite the recommendations of the Verma committee.

13
Rukmini, supra Chapter II at 9.
14
Sudesh Jhaku v. K C Jhaku, 1998 Cri LJ 2428.
15
Id. at Para 29.
16
Ministry of Law, Government of India, One Hundred and Seventy Second report on Review of Rape
Laws, LAW COMMISSION OF INDIA (2000).
17
Flavia Agnes, Law, Ideology and Female Sexuality Gender Neutrality in Rape Law, ECONOMIC AND
POLITICAL WEEKLY (May 06, 019, 12:21 PM), https://www.jstor.org/stable/4411809.
18
Ministry of Law, Government of India, Committee on Amendments to Criminal Law (Chairperson:
Justice J.S. Verma, 2013).
19
Agnes, supra note 17 at 845.

26 | P a g e
The law was criticised for undermining equal citizenry and protection rights for the
transgender community.20 There is no law to protect the transgender community
against the sexual offences like rape, sexual harassment, voyeurism, stalking, etc. and
it still remains to be a matter of discussion within the four corners of the academicians
and research organisations.21

Simultaneously, the Supreme Court in 2013 overturned the Naz Foundation decision
of the Delhi High Court, further re-criminalized homosexuality.22 The court held that
the law laid down under Section 377 is constitutional and does not infringe the
fundamental rights of the LGBTQA community. 23 The legally unsustainable rationale
given by the court was that firstly, the community constitutes a miniscule and
negligible part of the population24; secondly, the court cannot declare law ultra vires
by relying on the decisions of foreign jurisdictions.25 The court further added that
criminal law in a country is the reflection of the majoritarian public morality and the
Indian society vehemently disapproved homosexuality.26 While discarding the notions
of privacy, the court held that state interference is this case is justified on the ground
of public health, safety and morality.27 However, it is imperative to note that the court
did not rule out the possibility of legal reform instead it refused to extend the
constitutional principle of equality to read down Section 377 IPC.

“Notwithstanding this verdict, the competent legislature

shall be free to consider the desirability and propriety of
deleting Section 377 IPC from the statute book or amend

20
Harshad Pathak, Beyond the Binary: Rethinking Gender Neutrality in Indian Rape Law, CAMBRIDGE
UNIVERSITY PRESS (May 03, 2019, 17:55 PM), https://www.cambridge.org/core/journals/asian-journal-
of-comparative-law/article/beyond-the-binary-rethinking-gender-neutrality-in-indian-rape-
law/9BC983FB009B7BBDEB78CED0BC5144C0.
21
Id.
22
Simon Bronitt and Ashutosh Misra, Reforming Sexual Offences in India: Lessons in Human Rights
and Comparative Law, GRIFFITH ASIA QUARTERLY (May 07, 2019, 9:46AM),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2623352
23
Supra Chapter III at 38.
24
Id.
25
Id.
26
Rukmini, supra Chapter II at 9.
27
Gautam Bhan, Challenging the Limits of Law: Queer Politics and Legal Reform in India in
BECAUSE I HAVE A VOICE: QUEER POLITICS IN INDIA 468 (Arvind Narrain & Bhan Gautam
eds., 2005) (2003).

27 | P a g e
 the same as per the suggestion made by the Attorney
General.”28

The decision led to hue and cry and was also criticized for not being in conformity
with the International Covenant on Civil and Political Rights29 to which India is a
signatory. This gave rise to transactivisim throughout the country and thereafter, in
2014 the blossoming activism lead to the NALSA decision wherein the court
explicitly recognised the identity of the third gender, protecting their fundamental
rights under Article 14 of the Constitution of India, 1950. The court held that “person”
under article 14 is not limited to mean a man and a woman but extends to include
within its scope hijras and transgender persons who are neither male nor female.30
Additionally, right to dignified life and personal liberty under Article 21 was extended
to the transgender community and all constitutional rights and protection of law was
assured to the community and positive obligation was imposed on the state to protect
such rights.

The judgement was a progressive step to safeguard the constitutional off springs in
line with the constitutional morality. The decision also identified the predicament of
sexual violence faced by the community.

“55. Non-recognition of the identity of Hijras/transgender

persons denies them equal protection of law, thereby
leaving them extremely vulnerable to harassment, violence
and sexual assault in public spaces, at home and in jail,
also by the police. Sexual assault, including molestation,
rape, forced anal and oral sex, gang rape and stripping is
being committed with impunity and there are reliable
statistics and materials to support such activities.”31

The decision was also appreciated as it upheld the rule of law, regardless of the
numerical significance of the community and the normative societal standards of
morality and thereby giving a sense of assurance to the transgender community as to

28
Supra Chapter III at 38.
29
Supra Chapter II at 15.
30
NALSA, supra Chapter I at 9, Para 54.
31
Id. at Para 55.

28 | P a g e
the protection of the rights in addition to their identification as an underprivileged
Section of the society.32

After the legitimate recognition of the third gender through the NALSA decision, the
law on rape as well as other sexual offences should have been made gender neutral as
now the trans community, like women, belongs to the oppressed and vulnerable class
prone to sexual violence and harassment owing to the societal power dynamics.33
Even though the countries across the world are accepting distinct sexual attitudes and
norms but the position with respect to sex law in India remains static. Right to seek
protection from sexual assault is a right guaranteed by the constitution and a crucial
pillar to further gender justice and the same cannot be ignored.34 The gender neutrality
of sexual offences reflects a nuanced understanding of the nature and consequences of
the sexual offences under the criminal law and recognising that women, men and the
transgender community can be both victims and the perpetrators of the crime.35

The assignment of particularistic roles to a gender under criminal law compels the
LGBTQA community to suppress gender identity and fall under either of the two
hetero-normative genders. This stubbornness forgoes the possibilities of reordering
sexual behaviours amongst the LGBTQA, gender construction, and practices of the
community, acknowledgement, self construction and their representation.36 It
reinforces the hostility of behaviour towards them and coerces them to conform to
heterosexual framework only.

Despite this, under the Indian criminal justice system the definition of various sexual
offences is limited to the traditional male-on-female paradigm and other instances of
sexual offences beyond this constrain are overlooked even though they are committed
more often than not.37 The presupposition of the criminal law that victim is always a
women is devoid of the instances wherein the transgender community or men are
victims of the sexual offence giving rise to the need of factoring in the community not
previously taken into consideration.38 PUCL’S report in 2003 recognised the struggle

32
NALSA, supra Chapter I at 9, Para 118.
33
State v. Sheodayal, AIR 1956 Nagpur 8
34
Supra note at 18, Para 4.
35
Rumney, supra Chapter III at 32, 486.
36
Pathak, supra note at 20.
37
Id.
38
People’s Union for Civil Liberties, Report on Human Rights Violation Against the Transgender
Community, PUCL-K (May 03, 2019, 17:22 PM),

29 | P a g e
of the transgender community, sexual abuse and violence face by them causing
trauma and antithetical to the constitutional right of equal protection to all. 39

The critique behind the gender specificity of sexual offences is that it reinforces the
binary notion of gender, that is, the male-female dichotomy, and leads to social
exclusion.40 The Court by adopting a human-rights approach recognised the rights of
the third gender and imposed a positive obligation o the State to not discrimination on
the bases of sexual orientation. The recognition of gender identity in isolation without
substantive rights is a futile exercise.

The court has recognised the LGBTQA community as a vulnerable and oppressed
class in the NALSA decision and adopting a human rights approach gave legal
recognition to the community. Now, retained of law on sexual offences which is
gender specific, despite of the fact that both the women (protected from sexual
offences) and LGBTQA (not protected from sexual offences) belong to the vulnerable
section of the society is in violation of the constitutional principle of equality, further
the discrimination prohibited by Article 15, is against the human rights jurisprudence
adopted by the Supreme Court in NALSA decision and legal recognition to the
community will be in vain if the sexual offences against them, discrimination and
vulnerability is not taken care of.41 Recognition of only the former and not the latter
leaves the vulnerable community to become subject of sexual violence, harassment
and assault including rape, molestation, forced oral and anal sex, stripping, gang rape,
etc. in public and private sphere by the members of the society and the state
institutions like jail and police authorities.42

A study conducted by Alok Gupta on over 50 reported judgments under Section 377
reflected that over the past 50 years, 30% of the cases dealt with sexual assault and
abuse of minors and the remaining dealt with non-consensual sexual activities with
women and between men. Prosecution of cases involving consensual sexual conduct
under Section 377 was almost none and instead the law was grossly misused by the
police agency for the purposes of exploitation and harassment of the LGBTQA

http://pucl.org/sites/default/files/reports/Human_Rights_Violations_against_the_Transgender_Commu
nity.pdf.
39
Id. at 60-68.
40
Alletta Brenner, Resisting Simple Dichotomies: Critiquing Narratives of Victims, Perpetrators, and
Harm in Feminist Theories of Rape, 36 HARVARD JOURNAL OF LAW & GENDER 503, 567 (2013)
41
Pathak, supra note at 20.
42
NALSA, supra Chapter I at 9, Para 55.

30 | P a g e
community by charging them under Section 377.43 Later, the accused persons are
either discharged by the police officer owing to lack of substantial medial evidence to
prove carnal intercourse against the order of the nature or a closure report is filed
leading to the release of the accused person.44 Section 377 was being used as a tool
for sexual violence, exploitation or harassment by the governmental institutions and
agencies against the sexual minorities.45

Acknowledgment of the vulnerability of the LGBTQA community and yet excluding

them from the definition of sexual offences under the criminal law is equivalent to
abdication of state’s positive obligation to ensure equal protection for all citizenry. In
addition to this, the gender specificity of sexual offences is discriminatory on the basis
of “sex” under Article 15 of the Constitution. The court has held that sex includes
“sexual orientation”.46 Notion of gender identity of an individual is a fundamental
right safeguarded under Article 21 of the constitution within the realm of dignified
life and denial of same leads to nullity of equality assured by the constitution.

Additionally, the consensual same sex conduct, which is more frequent to the trans
community than others, should be decriminalised. There is nothing unnatural about
the conduct and the sexual preferences are inherent in an individual and cannot be
changed. The right of two individuals to select partners of their choice and
consensually engage in sexual conduct in private should not be criminalised. The
chapter of the dissertation unfolds the decriminalization of Section 377 and analysis
of the Navtej Singh Johar decision.

43
Alok Gupta, Section 377 and the Dignity of Indian Homosexuals, ECONOMIC AND POLITICAL
WEEKLY, 4817 (May 08, 2019, 15:30 PM), https://www.jstor.org/stable/4418926.
44
Id. at 4819-4820.
45
K.I.Vibhute, Consensual Homosexuality and the Indian Penal Code: Some Reflections on Interplay
of Law and Morality, JOURNAL OF INDIAN LAW INSTITUTE, 12 (May 08, 2019, 16:03 PM),
https://www.jstor.org/stable/43953422.
46
NALSA, supra Chapter I at 9, Para 68, 77.

31 | P a g e
 CHAPTER - V

SECTION 377 AND ITS DECRIMINALIZATION

“The state cannot demean their existence or control their destiny by

making their private sexual conduct a crime”1

Section 377 of the IPC states that any person who voluntarily has carnal intercourse
against the order of the nature with a man, woman or animal will be said to have
committed an unnatural offence. The words ‘carnal intercourse against the order of
the nature’ are however, not defined and remain ambiguous and up to the
interpretation of the judiciary. It takes into account unnatural offences ranging from
touching another person with an unnatural lust to carnal intercourse.2 Initially, the
judiciary interpreted it to include only coitus per anum3 but later read it to include
coitus per os4. In addition to this offences of bestiality5, buggery, sexual relation
between females, males6, mutual masturbation between same sex 7and different sex
partners, oral sex, anal sex, etc are included within the domain of ‘carnal intercourse
against the order of the nature’. That is, any (un)consensual penile-animal, penile-oral
and penile-anal, howsoever minimal, amounts to carnal intercourse. The law under
Section 377 is gender neural and includes sexual conducts of both heterosexuals’ and
homosexuals; however, the burden of law has often fallen on the latter only.8

The Wolfenden Committee9 in 1957 in its report concluded that the purpose of
criminal law is to preserve public decency and morality and furthered the thesis of
Mill that argued private space should be free from state interference.10 That is to say,
criminalizing consensual homosexuality in private space between two adults neither

1
Justice Kennedy, Lawrence v. Texas, 539 US 558, 18 (2003)
2
O’ Phillips, Sexual Offences in Zimbabwe: Fetishisms of Procreation, Perversion and Individual
Autonomy, UNIVERSITY OF CAMBRIDGE, 185 (1999).
3
Government v. Bapoji Bhatt (1884) 7 Mysore LR 280.
4
Khanu v. Emperor AIR 1925 Sind 286.
5
Khanu v. Emperor AIR 1934 Lah 261.
6
DP Minwalla v. Emperor, AIR 1935 Sind 78.
7
Brother John Antony v. State, 1992 Cri LJ 1352, 1359(Mad).
8
Geetanjali, supra Chapter II at 5, 21.
9
Wolfenden Committee, Report on Homosexuality and Prostitution, (Chairman: Sir John Wolfenden,
1957).
10
HLA HART, LAW, LIBERTY AND MORALITY, 88 Oxford University Press (1963).

32 | P a g e
fits in the theoretical nor operational realm of criminal law11 and hence should be
decriminalized as it is a matter of private morality.12

After the battle fought in the Naz Foundation decision and it’s overruling in the
Suresh Koushal decision, the prima facie question with respect to homosexuality
under Section 377 IPC was whether it is premised on the theory of legal moralism as
propounded by Lord Devlin and James Fitzjames Stephen or on the Harm principle
advocated by Prof. HLA Hart and John Mill.13 While the fifth and the fourteenth law
commission and the decision of Suresh Koushal were driven by the Devlin approach
and asserted that immorality per se is a reason sufficient for state interference and did
not favour decriminalisation of homosexuality; the Naz Foundation decision of the
court was based on assertion of the Wolfenden committee report and the
argumentation of Prof. HLA Hart stating that state should not interfere in the matters
of private sexual morality unless it causes harm to others and thereby seeking
intervention on part of the judiciary to acknowledge the sexual autonomy of an
individual and right to privacy of the two consenting homosexual adults in private.14

In 2017, the Supreme Court in deciding the question of whether right to privacy was a
fundamental right within the scope of Article 21 of the Constitution held that it was in
fact a fundamental right.15 Additionally, the court, taking critical view of the
regressive step taken in Suresh Koushal decision, observed that the decision is against
the rights jurisprudence as established by the Supreme Court holding,

“Sexual orientation is an essential attribute of privacy.

Discriminating against an individual on the basis of sexual
orientation is deeply offensive to the dignity and self-worth
of the individual.”16

This observation of the Supreme Court raised the hopes of the transgender
community with respect to their rights. In 2018, several writ petitions were referred to
the Supreme Court to adjudicate on the constitutionality of Section 377 IPC. One of
such petitions, by Navtej Singh Johar, was accepted by the Court and referred to the
11
Vibhute, supra Chapter IV at 45, 9.
12
Wolfenden Committee, supra note at 9, Section 61.
13
Vibhute, supra Chapter IV at 45, 15.
14
Id.
15
K.S. Puttuswamy v. Union of India, (2018) 1 SCC 809.
16
Id. at Para 126.

33 | P a g e
Constitutional Bench and five other petitions were joined to this petition. The
government through an affidavit articulated that the court may determine the
constitutionality of Section 377 IPC as per its wisdom.

The constitutional bench of the Supreme Court unanimously declared Section 377 of
the IPC as unconstitutional to the extent it criminalizes consensual sexual conduct
between two adults in private, be it between homosexuals, heterosexuals, same sex or
transgender sex,17 however, it continues to govern non-consensual sexual acts against
adults, minors and acts of bestiality.18 The court further held consensual sexual
conduct between two adult homosexuals is natural and not ‘against the order of the
nature’ – a pre-requisite under Section 377 and stated

“it is irrational, indefensible and manifestly arbitrary and

the LGBT community posses the same human rights,
constitutional and fundamental rights as other citizen do
since these rights inhere in individuals as natural and
human rights. Section 377 is in violation of Article 14, 15,
19 and 21 of the Constitution.”19

 On the Anvil of Article 14

The court held that it was in violation of article 14 of the Constitution as it rendered
differential treatment to the transgender community premised only on their sexual
orientation. The Supreme Court reinforced its anti-majoritarian role and showcased
its commitment towards the constitutional principles by adopting individualistic
approach. The court considered the two-fold-test of (i) intelligible differentia and (ii)
rational nexus between the differentia and the object sought to be achieved by the
provision.20 The court held that the purpose of Section 377 was to protect women and
children from carnal intercourse and after the 2013 amendment21, Section 375 of the
IPC22 and POSCO23 sufficiently serve this purpose and the incidental effect is that
even consensual sexual acts, neither harming the women nor the children, are

17
Supra Chapter I at 2, Para 97, 156, 252, 253.
18
Id. at Para 21.
19
Id. at Para 156.
20
E.P.Royappa v. State of Tamil Nadu, (1974) 4 SCC 3.
21
The Criminal Law (Amendment) Act, 2013, No. 13, Acts of Parliament, 2013.
22
The Protection of Children from Sexual Offences Act, 2012, No. 32, Acts of Parliament, 2012
23
The Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860.

34 | P a g e
criminalised and only victimizing the LGBTQA community who indulge in such
sexual conduct.24 The failure within the provision to distinguish between consensual
and non-consensual sexual conduct is patently arbitrary.25 In addition to this, all kinds
of sexual conduct of the homosexuals is penalized while only certain specific
conducts of the heterosexuals, which are against the order of the nature, are penalised
as per Section 377 calling for an unequal treatment. The court held that

“Section 377 IPC subjects the LGBT community to societal

pariah and dereliction and is, therefore, manifestly
arbitrary, for it has become an odious weapon for the
harassment of the LGBT community by subjecting them to
discrimination and unequal treatment”26

 On the Anvil of Article 15

The court while deciding the constitutional validity of Section 377 IPC on the
parameters of Article 15 held that “sex” under Article 15 includes sexual orientation
and any discrimination on this ground alone amounts to discrimination under Article
15. Like other citizenry, the LGBT community is equally entitled to protection at the
instance of the state.27 J. Chandrachud stated that Section 377 induces silence and
stigmatization of the LGBT community and buds the notions of societal morality
which does not accept certain relations, as being against the order of the nature.28 The
court in the following words held

“sex as it occurs in Article 15, is not merely restricted to

the biological attributes of an individual, but also includes
the ‘sexual identity and character’... the LGBT community
is a sexual minority which has suffered from unjustified and
unwarranted hostile discrimination, and is equally entitled
to the protection afforded by Article 15...29The fact that
only a miniscule fraction of country’s population
constitutes the LGBT and that in last 150 years less than
24
Supra Chapter I at 2, Para 237.
25
Id. at Para 14, 94, 239.
26
Id. at Para 253 (xv).
27
Id. at Para 15.
28
Id. at 52.
29
Id. at 15.1, 15.2.

35 | P a g e
 200 persons have been prosecuted under Section 377, is
neither here nor there.”30

 On the Anvil of Article 19

The constitutional bench unanimously held that Section 377 violates the right to
freedom of expression protected under Article 19 of the Constitution. The court
observed that homosexuality and sexual orientation are biological phenomenon,
inherent in every individual and a person has no control over it.31 Owing to the
harassment, the community fears coming out of the closet and revealing their gender
identity and sexual orientation. Unlike the heterosexuals, they do not express and
nurture their relationships which affects not just their mental but also physical
health.32 The consensual sexual acts of the community in private are not harmful or
injurious to any other member of the society and hence cannot be included within the
ambit of reasonable restrictions under Article 19(2) on grounds of public decency,
morality and order.33 J. Chandrachud further held that

“the right to intimacy includes the right to the choice of

partner and by criminalizing consensual same sex relations
under Section 377 amount to denial of this right.”34

 On the Anvil of Article 21

The Court had previously escalated the right to privacy from being a legal right to
being a fundamental right included within the ambit of Article 21 of the Constitution.
And the right to sexual privacy emanates from the right to privacy constitutionally
protected and any provision in violation of this right is unconstitutional. The court
held that

“...as sexual orientation is an essential and innate facet of

privacy, the right to privacy takes within its sweep the right
of every individual including that of the LGBT to express

30
Supra Chapter I at 2, Para 95.
31
Id. at Para 253.
32
Id. at Para 17.
33
Id. at Para 245.
34
Id. at Para 67, 151.

36 | P a g e
 their choices in terms of sexual inclination without the fear
of persecution or criminal prosecution.”35

The court further held that right to privacy does not determine on right to being alone
but extends to right to privacy of choice and space without the interference on part of
the state, which is fundamental in cases under Section 377. The individual and sexual
autonomy cannot be abridged solely because of their distinct sexual preferences.36 In
addition to this, the court also recognised the right of the homosexuals to enjoy their
fundamental right to a dignified living protected under Article 21 and criminal
prosecution under Section 377 curtails this right and liberty37 of LGBT community
from engaging in consensual sexual conduct.38

For the aforementioned reasons, the court declared Section 377 as unconstitutional to
the extent it criminalises consensual sexual conduct and asserted that regardless of the
number of individuals, if a fundamental right is being violated the court must
interfere39 and the reasoning laid down in Suresh Koushal is fallacious and
impermissible within our constitutional framework.40 The court took a shift from
criminalization approach to human rights approach; societal approach to
individualistic approach; and from majoritarian morality to constitutional morality
holding that constitutional morality cannot be martyred for social morality41 nor can
the two be substituted for each other; constitutional morality will always trump social
morality.42 Justice Deepak Misra held

“In the garb of social morality, the members of the LGBT

community must not be outlawed or given step-motherly
treatment of malefactor by the society... if such treatment to
LGBT community is allowed to persist, then the
constitutional courts, which are under the obligation to

35
Supra Chapter I at 2, Para 54, 162, 168.
36
Id. at Para 148.
37
Maneka Gandhi v. Union of India, (1978) 1 SCC 248
38
Supra Chapter I at 2, Para 16.1.
39
Id. at Para 253(ii).
40
Id. at Para 156(v).
41
Id. at Para 253 (v).
42
Id. at Para 80-81.

37 | P a g e
 protect the fundamental rights, would be failing in the
discharge of their duty.”43

The court also held that retention of Section 377 induces stereotyping on how society
treats the minority community and promotes a culture which results in destruction of
their gender identity and hampers a dignified living. It perpetuates discrimination
owing to the homophobic and transphobic attitude leading to victimization of the
LGBT community.44 Even though Section 377 criminalizes only certain sexual
conducts and not the relationship per se, the lens through which the LGBTQA
community is looked at changes. It reinforces the stereotype attached to sexual
orientation and the homosexuals are, prima facie, perceived as criminals.45 The court
partially decriminalised Section 377 leading to progressive realization of the right of
the sexual minorities and furthering transformative constitutionalism.

The Supreme Court discarded the social concerns that decriminalization of

homosexuality will lead to proliferation of homosexuality, moral degradation in the
society and breakdown the traditional Indian family values thereby affecting the
social fabric.46 However, reformation of the community in the society will continue to
be limited if they are harassed at the instance of governmental authorities and
excluded from educational and employment services. Stringent disciplinary or
criminal actions should be ensued against public servants acting in violation of the
rights of the LGBTQA community. 47

The Apex Court by reading down Section 377 has hailed a major leap to further
sexual rights of the LGBTQA community. The right to live a life with dignity and
enjoy human rights has been acknowledged by the court in favour of the LGBTQA
community by allowing consensual sexual conduct between adult homosexuals in
private. The step will contribute in restoring the dignity of the LGBTQA community,
however, the decriminalisation is only a step towards realization of justice for the
LGBTQA community and many more measures have to be incorporated to bring in
social and legal change for the community so as to gain social acceptance and equality
before law.

43
Supra Chapter I at 2, Para 122.
44
Id. at Para 51.
45
Id. at Para 56, 149
46
Geetanjali, supra Chapter II at 5, 25
47
Id. at 26.

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The penultimate question after the partial decriminalization of Section 377 is how far
this legal change will penetrate the society.48 The questions of civil realm regarding
acceptance of same-sex marriage, adoption, discrimination at workplace, etc. are
unanswered.49 Similarly, in the criminal realm, the scope of application of sexual
offences, presently exclusive to women, on the LGBTQA community, whether non-
consensual sexual assault will amount to rape under Section 375 and 376 or will it
remain to be punishable as sodomy only under Section 377 IPC, inclusion of the
transgender community under the Sexual Harassment at Workplace Act50, are
questions yet to be answered.

Now that same sex relationships and consensual sexual conduct amongst homosexuals
is allowed, the community is more vulnerable to other sexual offences provided for
under the IPC. Coming out of the closet for the community will be challenging as they
may face problem of sexual harassment owing to centuries of stereotyping; stalking
and voyeurism owing to the vulnerability of the community and its belongingness to
the marginalised sect. of the society; outraging of modesty or insulting the modesty by
the same sex partner in the relationship or by individuals in the society owing to the
amble walking style and dressing of the community; offence of rape against the
person belonging to the LGBTQA community and the same is not equivalent to
sodomy as will be discussed in the next chapter.

The aforementioned offences, presently, are gender specific and exclusive to women
with the object to protect the weak and oppressed gender (female) and in light of
Article 15(3) of the Constitution. However, in a step forward, it is imperative to
acknowledge the opportunity and make the law relating to sexual offences under the
IPC gender neural so as to cater to the needs of other vulnerable and closeted class
like the LGBTQA community and ensure protection for them. Whilst the judgment
has bestowed crucial and substantive rights to the marginalised community, which has
been for decades at the receiving end of bias and prejudice, it is pertinent to note that
such rights cannot be of avail in isolation of other substantive rights. The
argumentation on point of need for gender neutrality of criminal laws pertaining to
sexual offences will be unfolded in the next chapter of this dissertation.

48
Geetanjali, supra Chapter II at 5, 25.
49
Id. at 24.
50
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2012,
No. 14, Acts of Parliament, 2012.

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 CHAPTER - VI

NEED FOR TRANSGENDER INCLUSIVE SEXUAL

OFFENCES

“The case for treating crimes of like heinousness appears stronger than
calling for a distinction to be made between the victims of the crime
based on their sex”1

The judgment of Navtej Singh Johar has given arena to voice equal protection of
rights for the transgender community against sexual harassment, violence and
exploitation. Resultantly, the decriminalization of Section 377 will justify the
LGTBQA activism in India and ensure restoration of dignified life for the
community.2 Although, even after the decriminalization of Section 377, to the extent
of consenting homosexual adults, the homosexuals are put under constant legal gaze
and threat of moral terrorism.3

It is the duty of the legislature and the executive to address the concerns of the
community responsibly and at the earliest to justify in full spirit their substantive
rights so recognised by the judiciary. Without such redressal, the acknowledgement of
their substantive rights will go in vain. This chapter of the dissertation seeks to
illustrate the amendments required under criminal law to make it transgender
inclusive.

Presently, the offence of rape, defined under Section 3754 of the IPC, is an offence
committed by a man on a woman through penetrative and/or non-penetrative sexual

1
Rumney, supra Chapter III at 32, 484.
2
Gupta, supra Chapter IV at 43, 4817-4818.
3
Id. at 4820.
4
A man is said to commit "rape" if he-—
a. penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her
to do so with him or any other person; or
b. inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the
urethra or anus of a woman or makes her to do so with him or any other person; or
c. manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus
or any ~ of body of such woman or makes her to do so with him or any other person; or
d. applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any
other person, under the circumstances falling under any of the following seven descriptions:—
First.—Against her will.
Secondly.—Without her consent.

40 | P a g e
activities is considered to be committed by a man against the sexual sanctity of
women. Section 375 identifies the perpetrator as a male and the victims as a female
and makes the sexual intercourse by the former with the latter against her will an
offence under criminal law. The offence is punishable under Section 376 and also
contains provisions with regard to aggravated form of rape wherein the perpetrator
enjoys a position of power over the victim. The implicit presumption under the law is
that this offence can only be committed between a man and a woman and does not
take into consideration the pragmatic realities of non-consensual assault inflicted on a
transgender by another man, woman or a transgender. Therefore, the LGBTQA
community, who are more vulnerable to sexual exploitation owing to their positioning
in the societal power dynamics, are not included within the ambit of this definition.

The offence is not made gender neutral despite the recommendations of the 172nd Law
Commission Report5 and Justice Verma Committee Report6 and thereby limiting its
scope to female gender centric victims and male gender centric perpetrators. The
criminal law in India makes the offence of rape exclusive to women and does not
recognise that other sexual minorities, the LGBTQA community, equally vulnerable
and susceptible to the offence of rape. The law pertaining to Section 375 recognises
neither women as perpetrators nor the LGBTQA community as victims of the said
offence. The fact that more women are affected by the offence of rape is not denied

Thirdly.—With her consent, when her consent has been obtained by putting her or any person in whom
she is interested, in fear of death or of hurt.
Fourthly.—With her consent, when the man knows that he is not her husband and that her consent is
given because she believes that he is another man to whom she is or believes herself to be lawfully
married.
Fifthly.—With her consent when, at the time of giving such consent, by reason of unsoundness of mind
or intoxication or the administration by him personally or through another of any stupefying or
unwholesome Substance, she is unable to understand the nature and consequences of that to which she
gives consent.
Sixthly.—With or without her consent, when she is under eighteen years of age.
Seventhly.—When she is unable to communicate consent.
Explanation I.—For the purposes of this Section, "vagina" shall also include labia majora.
Explanation 2.—Consent means an unequivocal voluntary agreement when the woman by words,
gestures or any form of verbal or non-verbal communication, communicates willingness to participate
in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration shall not by the reason
only of that fact, be regarded as consenting to the sexual activity.
Exception I.—A medical procedure or intervention shall not constitute rape.
Exception 2.—Sexual intercourse or sexual acts by a man with his own wife, the wife not being under
fifteen years of age, is not rape.'.
5
Supra Chapter IV at 16.
6
Supra Chapter IV at 18.

41 | P a g e
but this reason is not sufficient enough to exclude the LGBTQA community which
thereby suffers inexplicable injury.

The Court in NALSA decision and Navtej Singh Johar decision have recognised the
vulnerability of the sexual minorities and the prevalence of the offence of rape against
them by the members of the society, same sex or different sex, and at the instance of
the state machinery. The realization of the substantive right of allowing consensual
sexual conduct amongst the homosexual and recognising them as the third existing
gender in the society and encouraging them to come out of the closet requires
assurance of protection of sexual rights of the community and thereby calls for an
amendment to the criminal law on rape to make it gender inclusive. However, the
judgment fails to recognise and equate non-consensual carnal intercourse against the
order of the nature as sexual assault under the IPC and deems it to be an unnatural
offence. The court recognised that consensual carnal intercourse against the order of
the nature between two adults does not amount to an unnatural offence and by
implication carnal intercourse against the order of the nature is a natural; however, the
court failed to equate the non-consensual carnal intercourse against the order of the
nature to sexual assault provided for under Section 375 of the IPC. This creates a legal
fallacy and an overlap of law as the court can punish a non-consensual natural act
which is already covered within the scope of Section 375, if the latter Section is made
transgender neutral.

Even though non-consensual sexual activity is punishable under Section 377, the
offence committed under Section 377 is distinct from that committed under Section
375 and the former cannot act as a substitute for the latter. It is pertinent to note, that
in spite of Section 377 which covered offences of non-consensual sexual conduct
against women, the legislature enacted the Section 375 to protect the vulnerable and
oppressed class, the women and the children, in the society. Drawing an analogy,
even the transgender community is vulnerable and marginalized sect. of the society
and thus, requires similar protection like women. This analogy is an extension of
principle of equality under Article 14, premised on the rule that like should be treated
alike and there is no room for unequal treatment.

To contest that all non-consensual sexual acts will fall within the purview of Section
377 IPC is inaccurate. It is discriminatory in nature lacking intelligible differentia to

42 | P a g e
distinguish between sexual assault committed against heterosexuals and that against
transgender and homosexuals.7 The court in case of NALSA categorically held that an
offence is an offence, regardless of the sexual orientation. The bodily integrity and
sexual sanctity has been abridged in both case and the social and moral condemnation
is with respect to the offence and not dependent on the gender of the victim. It is
therefore wrong to argue that sexual assault against the heterosexuals is rape while
that against the transgender and homosexuals is a lesser offence of infringement of
only bodily integrity. It cannot be justified that the rape laws protecting women are
distinct from those protecting the trans women; while former imposes a minimum
punishment of 10 years to life or death, the latter has no such minimum slab.

Also, like every act of rape (as per the definition prior the 2013 amendment which
called for penile-vaginal penetration as a requisite to constitute rape) cannot be
reduced to an act of outraging modesty (when penetration by bottle, sticks or iron rods
that caused serious injuries), similar, on drawing an correlation from Justice Verma
Committee Report, every act of sexual violence, assault or harassment against the
LGBTQA cannot be covered within the ambit of sodomy and unnatural offences
under Section 377 and it becomes imperative to make offences the offence of rape
gender neutral from the victim and accused perspective, especially to cater to the
needs of the sexual minorities in the society.

In terms of the quantum of punishment prescribed; the minimum punishment for the
offence of rape, after the 2018 amendment is minimum 10 years8 of imprisonment,
however, there is no such minimum criterion under Section 377 and it only lays down
that the court may punish the perpetrator with either description which may extend to
10 years.9 Therefore, the quantum of punishment for the offence of rape is higher than
an offence committed under Section 377. Additionally, Alok Gupta, factually
determined that in the past 50 years, as per the 50 reported judgments under Section
377, the number of convictions for non-consensual sex amounts to only 30% and
therein the offence committed by the perpetrator is not clearly identified.10

7
NALSA, supra Chapter I at 9.
8
Section 376 (1) Whoever, except in the cases provided for in sub-Section (2), commits rape, shall be
punished with rigorous imprisonment of either description for a term which shall not be less than seven
years, but which may extend to imprisonment for life, and shall also be liable to fine.
9
Supra Chapter II at 8.
10
Gupta, supra Chapter IV at 43, 4819.

43 | P a g e
Furthermore, the offence of rape also has certain categories of aggravated offences
which are punishable with higher imprisonment ranging up to death penalty, however,
there is no, per se, aggravated offence provided under Section 377, in fact the
quantum of punishment is left to be determined by the court in entirety with no
minimum slab. Such aggravated offence of rape include gang rape,11 causing death of
the victim or leading her to a persistent vegetative state,12 provision for higher
punishment for repeat offenders,13 etc. which are not accounted for and applicable to
offences committed under Section 377.

Also, after the 2018 amendment, especial categories are added wherein if the rape or
gang rape is committed with a child under the age of 12 years, the code provides for
death sentence14 while children under the age of 12 years whose inherent sexual
preference are distinct from the hetero-normative standards and belong to LGBTQA
community, the same provision is not applicable and adequate punishment for is not
provided for under Section 377 IPC. Hence, Section 377 is not an adequate alternative
to the offence of rape committed against the LGBTQA community and the offence
should be made gender neutral.

Also, now that the court has given legal sanctity to consensual sexual conduct
between homosexuals, it will lead to homosexual relationships and the possibility of
them living together. It is a question to be determined as to whether presumption of
11
Gang rape.—Where a woman is raped by one or more persons constituting a group or acting in
furtherance of a common intention, each of those persons shall be deemed to have committed the
offence of rape and shall be punished with rigorous imprisonment for a term which shall not be less
than twenty years, but which may extend to life which shall mean imprisonment for the remainder of
that person's natural life, and with fine:
Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of
the victim:
Provided further that any fine imposed under this Section shall be paid to the victim.
12
Punishment for causing death or resulting in persistent vegetative state of victim.—Whoever,
commits an offence punishable under sub-Section (1) or sub-Section (2) of Section 376 and in the
course of such commission inflicts an injury which causes the death of the woman or causes the woman
to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term which
shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean
imprisonment for the remainder of that person's natural life, or with death.
13
Punishment for repeat offenders.—Whoever has been previously convicted of an offence punishable
under Section 376 or Section 376-A or Section 376-D and is subsequently convicted of an offence
punishable under any of the said Sections shall be punished with imprisonment for life which shall
mean imprisonment for the remainder of that person's natural life, or with death.’
14
Whoever, commits rape on a woman under twelve years of age shall be punished with rigorous
imprisonment for a term which shall not be less than twenty years, but which may extend to
imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life,
and with fine or with death: Provided that such fine shall be just and reasonable to meet the medical
expenses and rehabilitation of the victim: Provided further that any fine imposed under this Section
shall be paid to the victim

44 | P a g e
marriage can be extended in favour of such couples and if the answer is in affirmative
then it gives occasion for the commission of offence under Section 376B arises15;
wherein even if the homosexual couple is living separately and then one of the partner
commits rape on the other, then even though the same-sex marriage is not recognised,
the offence is committed without the consent of the victim and while presumption of
marriage was raised. It becomes significant to cover all corners and make the offence
of rape a gender neutral provision after the progressive decision in Navtej Singh
Johar.

In addition to this, it has been established in chapter-II and the NALSA decision, the
LGBTQA community is more vulnerable to offences like sexual assault, harassment,
stalking, voyeurism, gang rape, etc. owing to non conformity with the binary notion
of genders and lack of social acceptance in the society. Now that the court has
decriminalised the private consensual sexual conduct between two consenting adult
homosexuals, it calls for the need to make sexual offences gender neutral – firstly, the
offences of outraging the modestly, defined under Section 35416 IPC and insulting the
modesty defined under Section 50917 IPC, which are presently exclusive to women, to
be made transgender inclusive so as encourage the third gender to come out of the
closet and gain social acceptance in addition to the legal acceptance18 and attaching
criminal sanction in case the modesty of the LGBTQA community is outraged or
insulted. This will give a sense of assurance and protection to the community and
thereby undo the historical injustice done for centuries. Owing to the amble walking
style, distinct dressing and other such features, the community is more vulnerable to
the aforementioned offences19 and hence, it should be transgender inclusive;

15
Sexual intercourse by husband upon his wife during separation.—Whoever has sexual intercourse
with his own wife, who is living separately, whether under a decree of separation or otherwise, without
her consent, shall be punished with imprisonment of either description for a term which shall not be
less than two years but which may extend to seven years, and shall also be liable to fine.
Explanation.—In this Section, “sexual intercourse” shall mean any of the acts mentioned in clauses (a)
to (d) of Section 375.
16
Assault or criminal force to woman with intent to outrage her modesty.—Whoever assaults or uses
criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby
outrage her modesty, shall be punished with imprisonment of either description for a term which may
extend to two years, or with fine, or with both.
17
Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or
gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or
object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished
with simple imprisonment for a term which may extend to three years, and also with fine
18
Geetanjali, supra Chapter II at 5, 25-26.
19
Id.

45 | P a g e
Secondly, the LGTBQA community is also a victim of sexual harassment, defined
under Section 354A20, and recognised by the court in the NALSA decision at the
instance of the members of the society and more often by the state machineries like
the police.21 The sexual harassment includes unwarranted physical contact, making
remarks premised on sexual orientation or demand for sexual favours or sexual
exploitation. The Section refers to only man as the perpetrator of the offence and the
woman as the victim and does not take into account the frequent sexual harassment
faced by the LGBTQA community.

The Delhi High Court in a progressive step affirmed the application of Section 354 A
of the Indian Penal Code, 1860 thereby making room for sexual harassment against
the transgender under the code. The victim contended that she was sexually harassed
owing to her sexual orientation and was denied legal remedy for the same reason. The
court recognizing the apologetic scenario directed the police agency to register the
case to further the directions of the Apex Court in case of NALSA.22 Nevertheless, it
is for the legislature to make the law inclusive and make the provision of sexual
offences applicable to sexual minorities as well and thus it becomes significant to
make the offence transgender inclusive;

Thirdly, owing the distinct sexual preferences, gender identity and the societal
stereotyping the LGBTQA community is more susceptible to offences like disrobing
and voyeurism, defined under Section 354B23 and 354C24, respectively, and thereby,

20
(1) A man committing any of the following acts—
i. physical contact and advances involving unwelcome and explicit sexual overtures; or
ii. a demand or request for sexual favours; or
iii. showing pornography against the will of a woman; or
iv. making sexually coloured remarks, shall be guilty of the offence of sexual harassment
(2) Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub-Section
(1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with
fine, or with both.
(3) Any man who commits the offence specified in clause (iv) of sub-Section (1) shall be punished with
imprisonment of either description for a term which may extend to one year, or with fine, or with both.
21
NALSA, supra Chapter I at 9, Para 55.
22
Anamika v. Union of India, W.P. (CRL.) 2537/2018 (17.12.2018- DELHC).
23
Any man who assaults or uses criminal force to any woman or abets such act with the intention of
disrobing or compelling her to be naked, shall be punished with imprisonment of either description for
a term which shall not be less than three years but which may extend to seven years, and shall also be
liable to fine.
24
Any man who watches, or captures the image of a woman engaging in a private act in circumstances
where she would usually have the expectation of not being observed either by the perpetrator or by any
other person at the behest of the perpetrator or disseminates such image shall be punished on first
conviction with imprisonment of either description for a term which shall not be less than one year, but
which may extend to three years, and shall also be liable to fine, and be punished on a second or

46 | P a g e
their sexual privacy can be hampered by their partner or any other member of the
society and it becomes important to protect them from such violation by making these
offences transgender inclusive; and lastly, the offence of stalking, defined under
Section 354D IPC25, should be made gender inclusive as a homosexual, otherwise
oppressed and vulnerable class, are prone to stalking by others when they reveal their
sexual identity either through personal interactions despite clear disinterest shown by
the victim or monitoring the computer or internet activity of the community and thus
the offence should be made transgender inclusive.

The sexual minorities are more prone to the offences of voyeurism, sexual
harassment, stalking and outraging of their modesty, owing to their sexual
preferences, their amble and/or their way of expression, which is unacceptable and
considered to be immoral in our society. Owing to the Victorian institutional
ideologies, there are also sexually exploited by the police agency and by other
individuals holding position of authority and hence the criminal law should be made
transgender inclusive.

The historical notion that sexual offences are mechanism of gender subordination and
evolved as a part of gender power dynamics is not a sufficient enough case to keep the

subsequent conviction, with imprisonment of either description for a term which shall not be less than
three years, but which may extend to seven years, and shall also be liable to fine.
Explanations:
1. For the purpose of this Section, “private act” includes an act of watching carried out in a place
which, in the circumstances, would reasonably be expected to provide privacy and where the
victim’s genitals, posterior or breasts are exposed or covered only in underwear; or the victim is
using a lavatory; or the victim is doing a sexual act that is not of a kind ordinarily done in public.
2. Where the victim consents to the capture of the images or any act, but not to their dissemination
to third persons and where such image or act is disseminated, such dissemination shall be
considered an offence under this Section.
25
(1) Any man who—
1. follows a woman and contacts, or attempts to contact such woman to foster personal interaction
repeatedly despite a clear indication of disinterest by such woman; or
2. monitors the use by a woman of the internet, email or any other form of electronic
communication,
commits the offence of stalking;
Provided that such conduct shall not amount to stalking if the man who pursued it proves that—
1. it was pursued for the purpose of preventing or detecting crime and the man accused of stalking
had been entrusted with the responsibility of prevention and detection of crime by the State; or
2. it was pursued under any law or to comply with any condition or requirement imposed by any
person under any law; or
3. in the particular circumstances such conduct was reasonable and justified.
(2) Whoever commits the offence of stalking shall be punished on first conviction with imprisonment
of either description for a term which may extend to three years, and shall also be liable to fine; and be
punished on a second or subsequent conviction, with imprisonment of either description for a term
which may extend to five years, and shall also be liable to fine.

47 | P a g e
law gender specific and not neutral.26 Instead, sexual offences are offences are an act
of power irrespective of the gender of the perpetrator or the victim. It might be more
dependent on the case or race or economic or social considerations but not solely on
the gender. The legal acceptance is of no good until and unless the community is
socially accepted. The moral and social condemnation of the sexual offences should
extend beyond the hetero-normative standards and should be made gender inclusive.

Also, in furtherance of the individualistic human rights approach adopted by the

NALSA and the Navtej Singh Johar decision a positive obligation is imposed the state
to protect the rights of the LGBQA community against sexual offences like it does for
women and thereby ensuring equal protection of all citizenry without any
discrimination on the basis of gender or sexual orientation.27

It is reiterated that even though a non-consensual sexual intercourse against LGBTQA

community can be covered within the ambit is Section 377 IPC, but there is no clear
mandate of law for the same. In addition to this, such offence even if covered under
Section 377 IPC will constitute the offence of Sodomy and not rape. Sodomy is only a
form of sexual assault and not all sexual acts against the LGBTQA community can be
identified as unnatural offences. This analogy is drawn from Justice Verma
Committee Report of 201328 wherein distinct sexual offences were identified that
could have been committed against the women and not all sexual offences were
included under the umbrella of rape.29 Now that consensual sexual conduct between
two consenting adult homosexuals is decriminalised, the other non-consensual sexual
offences should be made transgender neutral so as to protect the transgender
community and not include all offences against them under the wide umbrella of
unnatural offences. It is important to categorise the offence as it is without dilution of
all offences against the transgender community under the umbrella of Section 377.30

The insistence is on the amendment of the criminal law on sexual offences provided
for under IPC and not enactment of a separate gender neutral legislation for sexual

26
M.P. Singh, Gender, Law and Sexual Assault, ECONOMIC AND POLITICAL WEEKLY, 545 (May 08,
2019, 15:32 PM), https://www.jstor.org/stable/4405177.
27
Supra Chapter IV at 18, Para 4.
28
Supra Chapter V at 21.
29
Supra Chapter IV at 16.
30
Sakshi Raje, Transgender: The Human Rights, LAW TIMES JOURNAL (May 11, 2019, 10:51 AM),
http://lawtimesjournal.in/transgender-the-human-rights/.

48 | P a g e
offences which even though seems to be convenient, isn’t an ideal way;31 and even if
a separate law is enacted, the impact and seriousness associated to it should be same
as that of sexual offences under IPC. It heinousness should not be diluted and it
should not be deemed as a less serious offence than that under the IPC. The purpose
behind gender neutrality of sexual offences under the IPC is not to desexualize the
offence but to incorporate a holistic understanding of the nature of the offence beyond
the lens of gender.32

Apart from the gender neutrality and transgender inclusiveness of the sexual offense
provided for under the IPC, other law governing the criminal domain also have to be
amended for holistic recognition of the substantial right of the LGBTQA
community.33

It is also imperative to review the Domestic Violence Act, 200534 which addresses to
the issues of violence against the partners sharing the same household. The Act was
enacted purposively to protect women and children against abuse. Now that the court
has decriminalised consensual sexual conduct in private, it which will lead to sharing
of households by homosexuals and therefore, it becomes imperative to have an
inclusive definition of aggrieved party under the Act so as to include the sexual
minorities, in addition to women and children, and render protection against the
physical, sexual, psychological and verbal abuse committed against a person
belonging to the LGBTQA community and sharing the household with another
person. Even though Lesbians are covered within the ambit of the definition of
aggrieved party there lacks legal awareness amongst them with respect to the same
because of the prolonged exclusion of the community from legislations. Provision to
include LGBTQA within the scope of this law and making provisions for ensuring
legal assistance to them is crucial step towards the according equal status to the
community in the society.

In is also important to review and amend the Sexual Harassment of

Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and make it

31
Agnes, supra Chapter IV at 17, 844-845.
32
Pathak, supra Chapter IV at 20.
33
Animesh Sharma, Section 377: No Jurisprudential Basis, ECONOMIC AND POLITICAL WEEKLY ( May
14, 2019, 14:33 PM), https://www.epw.in/journal/2008/46/commentary/Section-377-no-
jurisprudential-basis.html?0=ip_login_no_cache%3D7f2e2da6d0d55a917ff3ebc34c05b74e
34
The Protection of Women From Domestic Violence Act, 005, No. 43, Acts of Parliament, 2005.

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transgender inclusive. The legislation was enacted with the objective to ensure a safe
working environment for the women, in public or private, in an organised or
unorganised sector. However, it does not include sexual minorities within its scope.
After the NALSA decision, the LGBTQA community is recognised as third gender
existing in the society and the state is obligated to take affirmative action in terms of
reservations in education and employment and warrant adequate representation of the
community. Resultantly, the workplace shall comprise of three genders – men,
women and the third gender and the latter two are the vulnerable genders requiring
protection from sexual harassment at workplace. However, the Act in its present form
does not include within its scope the sexual harassment faced by the individuals
belonging to LGBTQA community at workplace.35 Therefore, it becomes pertinent to
take note of the same and owing to the established fact that the sexual minorities
belong to the marginalised and vulnerable Section of the society, it becomes
significant to amend the law with regard to sexual harassment at workplace and make
it transgender inclusive.

While amending the laws, namely, the IPC, the Domestic Violence Act and the
Sexual Harassment of Women at Workplace Act, the legislature should take into
account the recommendations proposed by Justice Verma Committee. The mere
possibility of misuse of law against the vulnerable community should not avert the
legislature from making amendments to criminal law and infusing transgender
neutrality. Owing to the possibility of sexual assault even against homosexuals,
transgender and transsexual rape, the definition of both the perpetrator and the victim
should be made transgender inclusive and thereby broadening the scope of prevailing
law on sexual offences.

Transgender neutrality of sexual offences is not antithesis to the feminist

understanding of sexual offences. 36 Recognition of the LGBTQA community under
criminal law pertaining to sexual offences is not a backlash on the feminist principles
on sexual offences. In fact, various feminists have acknowledged the victimization of
the transgender community and concluded that the commission and punishment of

35
Even men aren't safe from sexual harassment at workplace: Survey, THE ECONOMIC TIMES, August
22, 2010.
36
Rumney, supra Chapter III at 32, 482.

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sexual offence should not be correlated to the gender of the victim. 37 Transgender
inclusiveness in criminal law relating to sexual offences does not intrinsically escalate
the vulnerability of women rather is a pragmatic recognition of the victimization of
the LGBTQA community.

In absenteeism of effectively adequate alternative to address sexual violence against

the LGBTQA community and in adherence to the principle of equality before law as
laid down in the Constitution, the rationale of transgender neutrality of sexual
offences is furthered. It is a coherent understanding wherein rights of each and every
victim of sexual offence are catered to without any prioritization based on gender.38
The accused, under the criminal law is punished for the sexual offence that he has
committed and not because of the gender of the victim concerned.39

37
Id. at 481.
38
Id. at 489.
39
Supra note at 30.

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 CHAPTER - VII

CONCLUSION

“History owes an apology to the members of this community and their

families, for the delay in providing redressal for the ignominy ad
ostracism that they have suffered through the centuries”1

The LGBTQA community remained to be a marginalised and vulnerable Section of

the society for decades. They lacked gender identity and their existence went
unacknowledged. The law manifesting Victorian ideologies was retained in the form
of Section 377 IPC making the existence of the community in public thorny. The
community has remained in the closet for decades and still they and their families
have faced sexual assault, violation and exploitation which cannot be undone. The
legislature and the executive have failed in their obligation to protect this community
from the institutional ideologies at the instance of the police agencies and from the
societal perception of their immoral existence.

The Judicial institution, through its decisions in NALSA and Navtej Singh Johar, has
attempted progressive realisation of the fundamental and human rights of the
community. The court has legitimised their existence as the third gender in the society
and further decriminalised consensual sexual conduct between adults in private.

Legal recognition and acceptance of their sexual conduct is of no avail until and
unless the laws and the policy framework is instituted so as to encourage the
community to come out of the closet with an assurance to protect the sexual
citizenship, sexual rights and dignity of the individual members of the community.
Presently, the criminal law discriminates between the victims of sexual offences based
on their gender; while the sexual offences committed against women are made
punishable; those against the LGBTQA community are not even recognised in the
statute book.

Additionally, failure on part of the court to associate non-consensual carnal

intercourse, between two adults, against the order of the nature as sexual assault has

1
Justice Indu Malhotra, Navtej Singh Johar v. Union of India, (2018) 1 SCC 791, Para 20.

52 | P a g e
abridged the aspirations of the community as such acts continue fall within the
umbrella of Section 377 of IPC. Such interpretation of law is erroneous and
manifestly discriminatory on the anvil of Article 15 of the Constitution and
antithetical to the principle of equality enshrined under Article 14 of the Constitution.

The non-categorisation of sexual offences that can be committed against the

LGBTQA community as against the specific categorization of offences that can be
committed against women is problematic. The victims of similar sexual offences
cannot be given discriminatory treatment at the instance of state solely on the premise
of the gender identity and sexual orientation of the victim. A sexual assault against
LGBTQA community should be punished in a likewise manner and with same
impact, seriousness and range of quantum of punishment as in case of women without
diluting it under the ambit of unnatural offence.

It is therefore imperative to cause amendment to the existing criminal law provided

for under IPC and other laws like the Sexual Harassment of Women at Workplace and
the Domestic Violence Act, which fall within the criminal realm so as to recognise
that sexual offences can be committed against the sexual minorities and are
punishable with the same seriousness regardless of the gender of the victim. The
accused, in accordance with Wolfenden Committee Report and the criminal
jurisprudence asserted by it, is punished for the sexual offence committed by him and
the punishment is not premised on the gender of the victim.

As far as the point of vulnerability is concerned, the LGBTQA community, just as

women, are vulnerable to offences of sexual violence, harassment and exploitation as
established in the chapter. The community needs ample protection from the state to
further their substantive rights as recognised by the judiciary including the right to
choice sexual partner and have consensual sexual activities in private.

It is the need of the hour to extend principle of equality and make the existing
criminal law transgender inclusive and recognizing the legal space for the community.
As per the statistical report issued by Equaldex on homosexual activity, India is one
of the 150 countries wherein homosexual activities have been legalised. The
decriminalization of sexual conduct between all consenting adults was an awaited step
towards the recognition of substantive right of the LGBTQA community.

53 | P a g e
Therefore, to conclude, one can say that progressive steps have been taken towards
the acknowledgment of the rights of the LGBTQA community however, to ensure
penetration of this legal change in the society, questions of civil and criminal realm
relating to the substantive rights have to answered at the instance of the legislature at
the earliest. Mere decriminalization of consensual sexual conduct between consenting
adults does not do justice to the LGBTQA community instead it opens up avenues to
be addressed by the legislature to ensure that this marginalised community, its sexual
rights, gender identity and orientation is protected by the state. It is the duty of the
state to protect individuals, regardless of their gender identity and sexual orientation,
from sexual offences, exploitation and violence by enacting separate legislations or
amending the existing ones and simultaneously furthering the mandate of the
international covenants to which India is a signatory. The state is also under an
obligation to ensure that community is not harassed, at the instance of the police
agency, while exercising their right to consensual sexual conduct in private. To
cherish the liberty so declared in favour of the sexual minorities, it is imperative to
extend legal protection to the community against sexual offences and incidentally
give them the social acceptance which they were deprived of centuries.

“So long as you do not achieve social liberty, whatever freedom is provided by the
law is of no avail to you”

54 | P a g e
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